Recognition of the purchase and sale transaction as valid
The court considered in open court with the use of audio-video recording of the court session the civil case on the statement of claim: L.E.V. to B.Y.L. THE PERSON CONCERNED: Akim of the Zhitikarinsky district on the recognition of the purchase and sale transaction as valid. The plaintiff, L.E.V., filed a lawsuit against B.Y.L. and the akim of the Zhitikarinsky district to recognize the sale and purchase transaction as valid, arguing that it is not possible to recognize this transaction as valid except through the court. At the hearing, the plaintiff L.E.V. She explained that in January 2017, her son found a house in the old town. We have agreed on the purchase and sale of the house. We paid a deposit of 100,000 tenge. After applying for a loan, we went to a notary to make a deal, it turned out that not all outbuildings were registered as property for B.Y.L. The owner herself left for Germany, leaving D.G.Y. a power of attorney. Instead of a purchase and sale agreement, an agreement was drawn up and the payment for the house was fully made. During the year, D.G.Yu. She did not have time to put the documents in order, her power of attorney expired, as a result of which it was not possible to register the purchase and sale transaction. After that, we repeatedly contacted B.Y.L. via Skype, she promised to come and send a power of attorney, but so far she has not done anything. And then the connection with her disappeared. Requests the court to recognize the purchase and sale of a house and a land plot with outbuildings as valid.
The defendant B.Y.L. did not appear at the court session, she was duly notified at her last known place of residence. The representative of the person concerned, akim of the Zhitikarinsky district, did not appear at the court session, provided the court with a statement stating that Akim of the Zhitikarinsky district had no claims to this property. Witness D.G.Y. explained at the hearing that B.Y.L., before leaving for Germany, had left her a power of attorney for the right to sell the house. When the power of attorney was issued, they said that everything was in order with the documents. There were buyers. L.E.V. first, I gave the deposit in January 2017, and then they went to the notary. The notary found out that not all outbuildings were registered on the property right for B.Y.L. An agreement was drawn up. They paid her off in full for the house, but they didn't have time to finalize the purchase and sale deal, as the power of attorney expired. Witness L.A.A. explained that his mother had bought them a house for his family. But due to the fact that the power of attorney expired, the transaction did not have time to register. B.Y.L. herself lives in Germany, and contact with her has been lost. When making a decision, the court is guided by the norms of Articles 118, 147, 153 of the Civil Code of the Republic of Kazakhstan, Article 17 of the Law of the Republic of Kazakhstan "On Housing Relations", and the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 07/16/2007 No. 5 "On certain issues of dispute resolution related to the protection of ownership of housing". The court found that in September 2014, defendant B.Y.L. issued a power of attorney addressed to D.G.Y. for the right to sell the house. There is an agreement between D.G.Yu. and L.E.V. that Dagayeva G.Yu. received the money in full for the sale of the house and undertakes to complete the transaction by 31.01.2018. However, the Department of Justice has not registered this transaction due to the fact that the power of attorney has expired. In fact, the deal between the parties took place. One side transferred money in the amount of 650,000 tenge, the other side issued a power of attorney for the right to sell the apartment. Currently, it is not possible to establish contacts with B./Y.L.. According to Article 147 of the Civil Code of the Republic of Kazakhstan, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. In accordance with paragraph 1 of art. 153 of the Civil Code of the Republic of Kazakhstan, non-compliance with the simple written form of a transaction does not entail its invalidity, the parties have the right to confirm the commission, content or execution of the transaction in writing or with evidence other than testimony. The power of attorney issued in the name of D.G.Yu., as well as the agreement between D.G.Yu. and L.E.V. confirm the transaction of sale. Housing construction is not registered as ownerless property, has not been transferred to communal ownership. In accordance with paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 5 "On certain issues of dispute resolution related to the protection of ownership of housing", in case of non-compliance with the form of the transaction, when the actual transaction is confirmed by evidence other than testimony (for example, a receipt for the sale of housing and receipt of money, or the issuance of power of attorney for the right of alienation), if the seller's location is unknown, the interested party has the right to apply to the court with a claim for recognition of the transaction as valid. It follows from these rules of substantive law that a real estate sale transaction must be confirmed by written evidence, which is confirmed by a power of attorney and an agreement. Under the circumstances described, the fact of the actual purchase and sale transaction between the parties is beyond doubt. The apartment purchase and sale transaction dated 31.01.2017 was actually executed by the parties and in its content does not contradict the law. Taking into account the evidence presented to the court, the court considers the claim to be satisfied.
Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of L.E.V. to B.Y.L. and the akim of the Zhitikarinsky district on the recognition of the purchase and sale transaction as valid. To recognize the purchase and sale of an apartment building with a plot of land and outbuildings located at the address: Kostanay region, city of Gitikara, Sh street.... house.. apartment 2, committed between B.Y.L. and L.E.V. valid.
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