Requirements for recognition of ownership of property, including unauthorized construction
According to subparagraph 11) of Part 1 of Article 104 of the CPC, the price of a claim is determined by: in claims for ownership of immovable property, the market value of such objects at their locations on the day the claim is filed. Thus, civil law disputes over the ownership of unauthorized buildings relate to property-related claims that must be assessed. The disputed object is tangible, has a monetary valuation, which is determined by market value. In accordance with subparagraph 1) paragraph 1 of Article 535 of the Tax Code, unless otherwise established 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. Claims for recognition of ownership of property are usually accepted by the courts after the plaintiffs have paid a state fee in the amount of 1% (3%) of the value of the property, with documents on its market value attached to the application. For example, according to the claim of I. The plaintiff attached to the statement of claim an information certificate dated October 17, 2016 (the claim was filed on October 26, 2016), issued by "O" LLP, according to which the average market approximate cost of an apartment building, 1960, to the Akimat regarding the recognition of the contract of sale of a house and a land plot as valid, under which she acquired ownership of these objects. construction, amounted to 1,500,000 tenge. According to the receipt dated October 26, 2016, the plaintiff paid a state fee of 15,000 tenge.
Requirements for recognition of ownership of property, including unauthorized construction
The judicial practice of considering civil cases on the recognition of ownership of an unauthorized building shows that the courts correctly accept such applications for production after payment of a state fee in the amount of 1% of the market value of the property on the day of filing the claim. For example, on January 31, 2017, Zh. appealed to the court with a statement of claim to the akimat for recognition of ownership of an unauthorized building, indicating that on March 26, 2001, on the basis of a contract of sale of a household and a land plot, he purchased a house built in 1959, located at the address: G. P., Ch. 50. The house began to collapse due to dilapidation. After receiving permission to renovate the house during the renovation, the house completely collapsed. In this regard, he was forced to build a new apartment building on the same plot of land. When filing the claim, the plaintiff paid a state fee in the amount of 26,440 tenge based on the real estate valuation report, according to which the estimated value of the object was 2,644,000 tenge. The court's decision satisfied the claim, but the court did not recover the court costs of paying the state fee in favor of the plaintiff from the defendant. According to the claim of M. It was established that on January 31, 2017, M. applied to the akimat for recognition of ownership of an unauthorized garage. On January 31, 2017, M. filed a lawsuit against the akimat for recognition of ownership of an unauthorized garage. He justified the claim by the fact that in 1986 he completed the construction of garage No. A in the garage cooperative "P", located in the city of P. From the specified period he uses the garage and pays taxes. He asked to recognize the ownership of an unauthorized building. According to the assessment report dated January 26, 2017, the cost of the garage was 606,000 tenge. When filing a claim, the plaintiff paid a state fee in the amount of KZT 6,333. The claim was satisfied, the court costs were not redistributed. It should be noted that in all cases of this category, the courts do not redistribute court costs. According to the above examples, the court did not collect from the defendants in favor of the plaintiffs the costs of paying the state fee. This is due to the fact that the defendant in such cases does not violate the plaintiff's material rights and, therefore, there is no fault in the fact that the plaintiff uses a judicial form of protection. Since the dispute arose not as a result of the defendant's violation of the plaintiff's rights, but because of the need to recognize ownership rights resulting from the unauthorized construction of an apartment building or garage, the courts do not recover court costs in favor of the plaintiff from an innocent defendant. Only the plaintiff is interested in the results of resolving such a dispute, therefore, he does not require reimbursement of court costs. In connection with the above, taking into account the rules of part 1 of Article 109 of the CPC of the Republic of Kazakhstan, prescribing the mandatory distribution of court costs to the party in whose favor the decision was made, today it has become necessary to consolidate this established judicial practice in the NP in terms of the distribution of court costs in cases of this category. It should be noted that in cases of special proceedings, applicants who have paid a state fee, for example, upon application for establishing the fact of kinship, are also not refunded the state fee by the courts.
Requirements for recognition of ownership of property, including unauthorized construction
The CPC does not specify whether court costs should be reimbursed for these categories of cases. In practice, the applicant pays the state fee when submitting an application. If the application is satisfied, based on the provision that these cases are considered and resolved by the court according to the general rules of claim procedure in accordance with Article 304 of the CPC, with the specifics established by Chapters 31-49 of the CPC, the state fee must be reimbursed to the applicant. But by whom? Apart from the interested parties, no one is involved in the case, there is no direct defendant who violates the applicant's rights. The only exception may be cases of appeal against the actions of a notary. This question was answered by the established judicial practice itself, which needs to be consolidated in the form of an appropriate explanation in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan.
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