Recognition of ownership | statute of limitations | disputes over real estate
The court considered in open court a civil case on the claim of Zh.G.K. against the Defendant, Akim of the Zhitikarinsky district, A THIRD PERSON WHO DOES NOT DECLARE INDEPENDENT CLAIMS ON the DEFENDANT's SIDE: K.T.V. on recognition of ownership of immovable property. Plaintiff Zh.G.K., plaintiff's representative Nigmetov S.D. Third party K.T.V. The plaintiff requests to recognize ownership of immovable property located at the address: g.Gitikara, ... microdistrict, house .., apartment 65 on the grounds of the statute of limitations. The claim is motivated by the fact that this apartment was bought from B.V.V. in 2007, for 350,000 tenge on the basis of a power of attorney for the registration of inheritance dated April 27, 2007 after the death of his wife B.T.A. with the right to further sell the apartment. To confirm the transaction, B.V.V. gave her the originals of the title documents for the apartment. It was not possible to conclude an apartment sale agreement in the prescribed form. After issuing the certificate of inheritance, she could not formalize ownership in her own name, as she learned from a notary that the share in the apartment belongs to citizen P.A.Yu., while B.V.V. himself. He drove off in an unknown direction, and communication with him was lost. On October 24, 2013, B.V.V. died, P.A.Yu. died on December 5, 2018. Having made repairs, having concluded contracts with public utilities, since 2007, J.G.K. has been living in this apartment. Due to the fact that the plaintiff has been living in this apartment for more than 15 years, conscientiously, openly and continuously owns real estate as his own, bearing the burden of maintenance, he asks to recognize her ownership of real estate by virtue of the statute of limitations. At the hearing, the plaintiff Zh.G.K., the plaintiff's representative Nigmetov S.D., fully supported the claim and asked to satisfy it. The representative of the defendant, Akim of the Zhitikarinsky district, Ramazanova Zh.M., did not appear at the court session, it follows from the submitted review that the disputed immovable property does not belong to communal property, is not registered as ownerless property, there is no intention to recognize it as communal property, the claim is recognized, they ask to consider the case without their participation. By virtue of Article 196 of Part 6 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), the court considers it possible to consider this case in the absence of the defendant. The third person, K.T.V., explained at the hearing that she was the wife of B.V.V.'s son, B.S.V., born on July 10, 1975, who died on January 24, 2010. They have a son from their marriage, B.N.S., born on January 8, 2010. She does not know citizen P.A.Yu. She has no intentions of entering into inheritance rights, does not claim an apartment, does not object to the satisfaction of the claim. Witness T.V.V. She explained to the court that she was the plaintiff's neighbor and lived in apartment No. 66. The plaintiff has been living in this apartment since 2007.
Previously, B.V.V. lived in the apartment with his wife, who later died, he was left to live alone, did not monitor the apartment, and abused alcoholic beverages. In 2007, the plaintiff bought this apartment from B.V.V., and he left the city. After moving into the apartment, J.G.K. renovated it, as the apartment was in a broken condition. She does not know citizen P.A.Y., has never lived in an apartment, the couple lived together. No one has ever made any claims regarding the plaintiff's residence. Witness A.A.B. explained to the court that she had been the plaintiff's neighbor until 2009. Previously, B.V.V. lived in the disputed apartment, this apartment was bought in 2007 by J.G.K., renovated, changed the doors, all plumbing, and the balcony, as the apartment was in a broken condition. B.V.V. himself used alcohol, he did not bear the burden of maintenance. She does not know citizen P.A.Y., has never lived in an apartment. No one claimed or complained about the apartment during their stay. In accordance with paragraph 5 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision in civil cases", a decision is lawful when it is rendered in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on application in the necessary cases. in cases of a law regulating a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness. In accordance with paragraph 1 of Article 240 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a citizen or a legal entity that is not the owner of property, but in good faith, openly and continuously owns as its own immovable property for seven years, or other property for at least five years, acquires ownership of this property (acquisition prescription). Paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 3 "On the practice of court consideration of disputes on the right to housing abandoned by the owner" (hereinafter referred to as the Regulatory Resolution) explains to the courts that when considering claims for the acquisition of ownership of housing on the basis of the statute of limitations, it is necessary to take into account the existence of a set of circumstances specified in paragraph 1 of Article 240 of the Civil Code, i.e. bona fide, open, continuous ownership of immovable property as one's own for seven years.
According to the data of the authorized body, ownership of immovable property located at the address: g.Gitikara, .. microdistrict, house 20, apartment 65 is registered for B.V.V., P.A.Yu. From the records of the death certificate it follows that B.V.V. died on October 20, 2013, P.A.Yu. died on December 2, 2018. Inheritance cases were not opened after their death. At the same time, the Civil Code provides for a specific procedure for transferring the property of a deceased citizen to another person. This procedure consists in the inheritance of property by heirs by law or by will, as well as in recognizing the inheritance as extortionate and entered into communal ownership. The court found that the owner disposed of the property during his lifetime and transferred it to the plaintiff, and after B.V.V.'s death, the property actually became ownerless. At the same time, the local executive body has not taken any action for a long time to recognize the inheritance as extortionate and entered into communal ownership. Thus, the plaintiff began to own the apartment on the basis of a purchase and sale agreement without observing the form prescribed by law, while moving into it with the consent of the owner, which is confirmed by the transferred originals of the title documents. For more than seven years of owning the apartment, the plaintiff did not hide that she was not the owner, thus in this case there is good faith and openness of ownership, since the plaintiff restored the dwelling and bore the burden of maintaining the property since 2007. At the same time, she did not hide the fact of her ownership, uses it openly, and carries out ownership continuously. During the stay, there was no dispute over real estate with anyone, no one claimed the apartment, no complaints were expressed. The property passed into possession by statute of limitations at the will of the heirs, who did not register inheritance rights, which was confirmed in court by the testimony of K.T.V. In addition, by virtue of Article 171 of the CPC, the court accepted the recognition of the claim by the defendant, which relieves the court of the obligation to examine the evidence. In such circumstances, the court considers the claim to be satisfied. In accordance with Article 109 of the CPC, the court awards all court costs incurred in the case to the party in whose favor the decision was made. This claim is not the result of a violation of the rights and legitimate interests of the defendant, therefore, the plaintiff's court costs are not recoverable.
Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of J.G.K. to the Akim of the Zhitikarinsky district for recognition of ownership rights by virtue of the statute of limitations. To recognize for Zh.G.K. the right of ownership to immovable property located at the address: Kostanay region, city of Gitikara, .. microdistrict, house ..., apartment 65.
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