Recovery of monetary compensation from the share of common real estate
The court considered in open court a civil case on the claim of: D.V.N. to K.V.S., K.O.G., M.T.G., G.S.B., For the payment of a share in common immovable property. The plaintiff is the owner of 1/5 of the share in the real estate at : g.Gitikara, .. microdistrict, house .., apartment 11. Also, 1/5 of the share of this apartment belongs by right of ownership to the defendants K.V.S., K.O.G., M.T.G., G.S.B.. Due to their hostile relations, they are unable to use the apartment they own on the right of shared ownership with the defendants. The cost of 1/5 of the share is 460,000 tenge, which the defendants do not want to voluntarily pay. Requests to collect monetary compensation from the defendants for 1/5 of the share in the real estate at : g.Gitikara, ... microdistrict, house .., apartment 11 in the amount of 460,000 tenge. At the hearing, the plaintiff D.V.N., having supported the claims, explained to the court that she was the owner of 1/5 of the share of the apartment at the address: g.Gitikara, .. microdistrict, house .., apartment 11. Also, 1/5 of the share of this apartment belongs by right of ownership to the defendants K.V.S., K.O.G., M.T.G., G.S.B.. No one has been living in this apartment for a year and a half. She approached her co-owners with a proposal to sell the apartment and allocate her 1/5 of the share of the sale. However, they did not come to an agreement on the sale of the apartment, the defendants do not agree to sell the apartment. Utility bills are accumulating for the apartment, and bailiffs have been arrested, which makes it difficult to sell it. By virtue of Article 218 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), she requests to collect in her favor jointly with K.V.S., K.O.G., M.T.G., G.S.B.. the cost of 1/5 of the apartment share. The defendant M.T.G. at the hearing, she did not recognize the claim, she explained to the court that the will was null and void, did not meet the requirements of the legislation, and therefore considered the notarial actions invalid. D.V.N. fraudulently seized the property. The certificate of registered rights to immovable property is invalid, considers the registration of ownership of 1/5 of the apartment share for D.V.N. illegal. She herself lives in the Russian Federation and does not have her own housing, as a result of which she needs this apartment. Requests to dismiss the claim. Defendant K.O.G. She did not admit the claim, referring to the illegality of owning 1/5 of the share of the disputed apartment, while she did not need the apartment. She didn't mind selling it, but M.T.G. was against it because she doesn't have her own place to live. He asks to dismiss the claim. The representative, lawyer G.A.A., who entered the case at the stage of studying the written materials of the case in court arguments, explained that he believes that if the claim is satisfied, it will be difficult to enforce it due to the fact that the defendants are citizens of the Russian Federation. The defendant, K.V.S., did not recognize the claim, but explained to the court that Dmitrieva V.N. illegally obtained 1/5 of the share of the disputed apartment. But since she currently owns 1/5 of the apartment, she must live in it and bear the burden of maintenance. She didn't need this apartment, they wanted to sell it, but M.T.G. was against it. He asks to dismiss the claim.
The defendant, G.S.B., did not appear at the court session without valid reasons, did not ask to consider the case without his participation, although he was duly notified of the time and place of the court session. The court found the reasons for the defendant's non-appearance at the court session to be disrespectful and, by virtue of Article 196 of part 4 of the CPC, determined to consider the case in the absence of the defendant. Having examined the written materials of the case and listened to the parties, the court comes to the following conclusion. During the trial, it was established that the plaintiff D.V.N. is a co-owner of 1/5 of the share in real estate at the address: g.Gitikara, .. microdistrict, house .., apartment 11 on the basis of the certificate of inheritance under will No. 1582 dated December 12, 2018, the defendants own 1/5 of the share of this apartment on the basis of the privatization agreement No. 10254 dated November 18, 1993. The decision of the Zhitikarinsky District Court of February 06, 2019, which entered into force, denied the claim of M.T.G. for the cancellation of the will. According to Article 76 of Part 2 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court. Such circumstances are not proven again in other civil cases involving the same persons. Therefore, the defendants' arguments regarding the illegal possession of 1/5 of the apartment by the plaintiff, the nullity of the will are untenable. No other evidence of the illegality of possession or cancellation of the will has been presented to the court. In accordance with Article 188 of the Civil Code, the owner has the right to own, use and dispose of his property. The owner has the right, at his discretion, to perform any actions with respect to the property belonging to him, including alienating this property to other persons, transferring to them, while remaining the owner, his powers to own, use and dispose of the property, pledge the property and encumber it in other ways, dispose of it in another way. According to Article 209 of the Civil Code, property owned by two or more persons belongs to them by right of common ownership. The property may be jointly owned with the definition of the share of each of the owners in the ownership right (shared ownership) or without the definition of such shares (joint ownership). On the basis of Article 213 of the Civil Code, each participant in shared ownership has the right to provide for his possession and use of a part of the common property commensurate with his share, and if this is not possible, he has the right to demand from other participants who own and use the property the payment of an appropriate amount of money or other compensation. By virtue of Article 218 of the Civil Code, a participant in shared ownership has the right to demand the allocation of his share from the common property. If the participants in the shared ownership fail to reach an agreement on the method and conditions of dividing the common property or allocating the share of one of them, the participant in the shared ownership has the right to demand the allocation of his share in kind from the common property. If the allocation of a share in kind is not permitted by legislative acts or is impossible without disproportionate damage to property in common ownership, the separating owner has the right to pay him the value of his share by other participants in shared ownership. According to the real estate valuation report No.00034-20 dated January 28, 2020, issued by Aspect LLP, it follows that the market value of 1/5 of the share of the apartment at the address: Gitikara, .. microdistrict, house .., apartment 11 is 460,000 tenge. The specified report meets the requirements of relevance, admissibility and reliability, complies with the requirements of current legislation, contains a detailed description of the studies performed, and relevant data from available documents, as well as visual inspection, are provided to substantiate the conclusions reached. The defendants did not provide any evidence to refute these conclusions, and therefore the court has no reason to distrust the report, therefore, the court concludes that the market value of 1/5 of the share of the disputed property is correctly determined. At the hearing, the parties did not object that D.V.N. had approached them in a pre-trial manner with the question of selling the apartment and allocating its share. Having assessed the above circumstances and the evidence presented by the parties, the court concludes that the claim must be satisfied. According to Part 5 of Article 218 of the Civil Code, upon receiving compensation in accordance with paragraphs 3 and 4 of this Article, the owner loses the right to a share in the common property. By virtue of paragraph 1 of Article 109 of the CPC, the court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case. In accordance with the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" dated July 11, 2003 No. 5, when making decisions in cases in which there are several defendants, court costs are collected from them in equity, not in solidarity. According to Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings. In this regard, the defendants are liable to recover in favor of the plaintiff the costs of paying the state fee in the amount of 4,600 tenge, the bank's commission of 150 tenge, the costs of paying for legal assistance of 10,000 tenge according to the contract for the provision of legal assistance and the receipt for the receipt cash order dated March 10, 2020, according to which the amount of services paid is 10,000 tenge. Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of the DVN against KVS, KOG, MTG, GSB for the payment of a share in common immovable property. To collect in solidarity with KVS, KOG, MTG, GSB in favor of DVN the cost of 1/5 of the share of the apartment at the address: Kostanay region, city of Zhitikara, .. microdistrict, house .., apartment 11 in the amount of 460,000 (four hundred and sixty thousand) tenge. To collect a refund of the state duty in the amount of 1,150 (one thousand one hundred and fifty), the bank's commission of 38 (thirty-eight) tenge, the costs of paying for the representative's assistance of 2,500 (two thousand five hundred) tenge in favor of the DVN, a total of 3,688 (three thousand six hundred eighty-eight) tenge. To collect in a shared manner from KOG in favor of DVN a refund of the state duty in the amount of 1,150 (one thousand one hundred and fifty) tenge, a bank commission of 38 (thirty-eight), the costs of paying for the assistance of a representative of 2,500 (two thousand five hundred) tenge, a total of 3,688 (three thousand six hundred eighty-eight) tenge. To collect a refund of the state duty in the amount of 1,150 (one thousand one hundred and fifty) tenge, the bank's commission 38 (thirty-eight), the costs of paying for the representative's assistance 2,500 (two thousand five hundred) tenge in favor of the DVN, a total of 3,688 (three thousand six hundred and eighty-eight) tenge. To collect a refund of the state duty in the amount of 1,150 (one thousand one hundred and fifty) tenge, the bank's commission of 38 (thirty-eight), the costs of paying for the representative's assistance of 2,500 (two thousand five hundred) tenge in favor of the DVN, a total of 3,688 (three thousand six hundred and eighty-eight) tenge.
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