Recognition of the right to unauthorized construction

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3 May 2026

Recognition of the right to unauthorized construction

A claim for recognition of the right to unauthorized construction is considered in a lawsuit, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute over the right.

Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.

Thus, claims for recognition of the right to unauthorized construction are filed and considered by the courts in all cases in the claim proceedings.

Jurisdiction

In accordance with Part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.

That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed property.

If one of the parties to the case is a citizen, then such claims are considered by the district courts.

In cases where the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with part 1 of Article 27 of the CPC.

The circle of persons involved in the case.

Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building).

The courts should keep in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.

In each specific case, the composition of third parties whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied.

It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.

State duty

In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.

By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.

Subparagraph 11) of Part 1 of Article 104 of the CPC stipulates that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day of filing the claim.

Civil law disputes over the ownership of unauthorized buildings relate to property-related claims, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.

According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim.

The state fee for filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property, with documents on its market value attached to the application (assessment report, information certificates on the market value of immovable property).

The rules of Part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not recover from local executive bodies in favor of plaintiffs the costs of paying state fees. It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the plaintiff's material rights. Earlier, the Supreme Court provided clarifications on this issue.,

including in the regulatory resolution "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases."

These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.

At the same time, there are cases when courts have accepted lawsuits and considered cases without assessing the market value of a real estate object or with only the title page of the real estate valuation report, while its research part contains approaches and methods, description, technical and design characteristics and other information about the research object in the materials. the case was missing.

The practice of applying substantive law

In accordance with article 23 of the CPC, courts in civil proceedings consider and resolve cases for the protection of violated or disputed rights, freedoms and legitimate interests, unless otherwise protected by law.

Recognition of ownership of an unauthorized building in court is an exceptional way of protecting the right, which can be applied if the person who applied to the court, for some reason beyond his control, was deprived of the opportunity to obtain title documents for a newly created or reconstructed real estate object in accordance with the procedure established by regulatory legal acts regulating relations, related to urban development activities and land use relations.

Such a claim cannot be used to simplify the registration of rights to a newly created real estate object in order to circumvent the provisions of special legislation providing for a permissive procedure for the creation and commissioning of new immovable property.

In accordance with the Law on Architecture, the construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs) of facilities and their complexes is carried out according to design (design and estimate) documentation (hereinafter referred to as PSD) developed in accordance with detailed planning projects approved in accordance with the established procedure, building projects executed on the basis of the general plan of the settlement (or their replacement scheme for the development and development of settlements with a population of up to five thousand people). By virtue of paragraph 1 of Article 63 of the Law, the PSA for the construction of new buildings and structures, their complexes, must contain urban planning justification for the location of the facility, economic, architectural, spatial planning, functional, technological, constructive, engineering, environmental protection, energy-saving and other solutions to the extent necessary for the construction and commissioning of the completed facility..

Paragraphs 2, 4 of Article 73 of the Law provide that the acceptance and commissioning of the constructed facility are carried out by the customer when it is fully ready in accordance with the approved project and there is a declaration of conformity, conclusions on the quality of construction and installation work and compliance of the work performed with the approved project. At the same time, the complete readiness of the constructed facility is determined in accordance with the rules for the organization of construction and the passage of licensing procedures in the field of construction. The acceptance of the constructed facility into operation is executed by an act. The acceptance certificate of the constructed facility is subject to approval. The acceptance certificate is approved by the customer. The date of signing the acceptance certificate of the facility is considered to be the date of its approval and the date of commissioning of the facility.

The Order of the Minister of Investment and Development of the Republic of Kazakhstan dated December 13, 2017 No. 867 approved the Rules for the acceptance of a built facility into operation by the owner himself, as well as the forms of the acceptance certificate.

Thus, according to the provisions of the Law, the owners of the land plot carry out the commissioning of the completed residential building independently. The basis for registration of the rights to the erected structure is the act of acceptance of the constructed facility into operation.

The acceptance procedure and the form of the acceptance certificate of the constructed facility for operation by the owner are independently approved by the authorized bodies for architecture, urban planning and construction. The act of acceptance of the constructed facility into operation by the owner is independently subject to mandatory registration with local executive bodies performing functions in the field of architecture, urban planning and construction.

It follows from this that the owner of an unauthorized building must apply to the authorized bodies in the field of architecture, urban planning and construction in accordance with the procedure provided for in Chapter 9 of the Law.

In case of refusal by the authorized body in the field of architecture, urban planning and construction to issue technical documentation confirming the conformity of the building with established urban planning, building codes and regulations, the owner of the building has the right to appeal to the court against the actions (inaction) of state bodies, in accordance with the procedure of the APPC.

The courts mainly motivate their decisions by the norm contained in Article 244 of the Civil Code, referring to the technical examination of reliability and stability of a residential building submitted by the plaintiff, and the lack of another opportunity to recognize ownership of an unauthorized structure.

Meanwhile, such cases are not subject to judicial review due to the absence of a dispute.

Regulatory framework

The main regulatory legal acts regulating the recognition of the right to unauthorized construction and to be applied in the consideration of cases in this category are:

- The Constitution of the Republic of Kazakhstan;

- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code);

- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);

- The Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code);

- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);

- The Law of the Republic of Kazakhstan "On Local Government in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);

- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code);

- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code) (hereinafter referred to as the Tax Code);

- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

"On some issues of the application of legislation on the right of ownership of housing" dated July 9, 1999, No. 10 (hereinafter referred to as the regulatory resolution

"On some issues of the application of legislation on the right of ownership of housing");

- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

"On certain issues of Dispute Resolution related to the protection of the right of ownership of housing" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory Resolution "On certain issues of Dispute Resolution related to the protection of the right of ownership of housing");

- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

"On certain issues of the application of Land Legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Land Legislation by Courts");

- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

"On the application by the Courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter referred to as the regulatory resolution "On the application by the Courts of the Republic of Kazakhstan of legislation on court costs in civil cases");

- Regulatory resolution of the Supreme Court of the Republic of Kazakhstan

"On certain issues of the application of Inheritance Legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Inheritance Legislation by Courts");

- Rules for the organization of construction and passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015

No. 750 (hereinafter referred to as the Rules of Building Organization)

- SNiP RK, regulating relations in the field of architecture, urban planning and construction.

When considering disputes, the regulatory legal acts in force at the time of the emergence of the relevant legal relationship are subject to application.

The courts mainly motivate their decisions by the norm contained in Article 244 of the Civil Code, referring to the technical examination of reliability and stability of a residential building submitted by the plaintiff, and the lack of any other opportunity to recognize ownership of an unauthorized structure.

Meanwhile, such cases are not subject to judicial review due to the absence of a dispute.

Regulatory and legal framework