Response to the Plaintiff's appeal on the compulsory alienation of land plots
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To the Appellate Judicial Board for Civil and Administrative Cases of the Court of Nur-Sultan
Nur-Sultan, Sauran St., 36 from the Defendant: A.A.E. IIN ……………
Proxy Representative: Law and Law Law Firm
BIN 201240021767 Almaty, 79/71 Abylai Khan ave., office 304 info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 57 58; +7 727 971 78 58
OBJECTION
on the Plaintiff's appeal in the person of the Akimat of Nur-Sultan on
The decision of the Almaty District Court of Nur-Sultan dated April 27, 2022 On April 27, 2022, the Judge of the Almaty District Court of Nur-Sultan A.S.S., having considered the civil case No. 7111-22-00-2/214 on the claim of the Akimat of Nur-Sultan to A.A.E. on the compulsory alienation of land with compensation, decided: - partially satisfy the claim of the Akimat of the city of Nur-Sultan, and forcibly alienate (buy out) the land plot for state needs belonging to A.A.E. on the right of ownership, located at the address: Nur-Sultan city, Almaty district, 23-15 street, plot 6 (formerly the intersection of streets No. 23-15 and Zh. N. (project name), cadastral number 21-318-085-888, with a total area of 0.3646 hectares (on the right of private ownership) with payment of monetary compensation in the amount of 286 484,450 tenge; - Nur-Sultan city, Almaty district, 23-15 street, site 6A (formerly the intersection of streets No. 23-15 and Zh. N. (project name), cadastral number 21-318-086-1086, with a total area of 0.1741 hectares (under lease) with payment of monetary compensation in the amount of 314,764 tenge; - Nur-Sultan city, Almaty district, 23-15 street, site 6B (formerly the intersection of streets No. 23-15 and Zh. N. (project name), cadastral number 21-318-086-1087, with a total area of 0.0464 hectares (under lease) with payment of monetary compensation in the amount of 1,181,043 tenge; - recover from A.A.E. to the state revenue the state duty in the amount of 4,770 tenge. To dismiss the rest of the claim.
Response to the Plaintiff's appeal on the compulsory alienation of land plots
Subsequently, disagreeing with the Court's decision, the Plaintiff filed an Appeal. In his complaint, the representative of the plaintiff of the State Institution "Housing and Housing Inspectorate of the city of Nur-Sultan" S. N. expresses his disagreement with the decision of the Almaty District Court of Nur-Sultan No. 7111-22-00-2/214 dated April 27, 2022 regarding the payment of monetary compensation in the amount of 286,484,450 tenge for a land plot of 0.3646 hectares located on the right of private ownership, located in the Almaty district, at the intersection of streets 23-15 and N.Zh. The plaintiff disputes the conclusion No. 584 dated March 24, 2022 of the judicial expert of the Federal State Unitary Enterprise "Center for Forensic Examinations of the Ministry of Justice of the Republic of Kazakhstan" K.E.Sh. on two grounds. However, the same grounds were given by another representative of the Plaintiff, T.S., at a hearing of the Court of First Instance chaired by Judge Asanova S.S. and with the participation of Prosecutor Rashitova B.S. It is important to note that the prosecutor did not dispute expert opinion No. 584 and fully supported it. Dear Board of Appeal! The Defendant believes that the Plaintiff's arguments are unfounded and unfounded. During the trial, Judge A.S.S. She interviewed an expert, K.E.Sh., who explained that he did not use profitable and costly valuation methods due to the fact that this land plot did not bring any income, there were no buildings on it belonging to the Defendant, the land plot was not leased and did not require investments, and therefore he applied a comparative method. estimates. This is stated in the reasoning part of the Court's decision. In addition, the expert explained to the Court why he applied only one amendment in the assessment – (-10%). According to the Valuation Standard "Valuation of Real Estate", approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519 (hereinafter referred to as the Standard), Chapter 5 states that the establishment of a market or other value is carried out by applying valuation methods grouped into income, cost and comparative approaches.
The income approach is used to assess the market value of real estate properties that are bought and sold due to their ability to generate income. The cost-based approach is used to evaluate real estate, the market for the sale or lease of which is limited, and objects that cannot be moved without disproportionate damage to their purpose. The expert did not apply these methods due to the fact that this land plot did not generate any income, there were no buildings on it belonging to the Defendant, it was not leased and did not require investments. The Plaintiff's representative T.S. also asked the court to order a re-examination, since in his opinion K.E.Sh.'s conclusion was insufficiently substantiated and his conclusions were questionable, to which Judge Asanova S.S. resorted to the evidence base provided by the Defendant, namely, the facts that the land had previously been assessed twice by an independent appraiser Kalinin A.N. and twice – by independent forensic experts Alayeva G.T. and Omarov A.S. In the comparative aspect, the sums of estimates are as follows:
Assessment report No.41/2021 dated April 13, 2021, carried out by IP Kalinin &Partners Valuation and Consulting Company, where the market value of a land plot of 0.3646 hectares in the amount of 289,663,000 tenge was determined;
Assessment report No. 137/2021 dated October 06, 2021, re-executed by IP Kalinin &Partners Appraisal and Consulting Company, which determined the market value of the same land plot in the amount of 326,050,000 tenge;
Expert opinion No. 14 dated May 03, 2021, executed by the Center for Expertise and Evaluation "Parity" LLP (forensic expert G.T. Alayeva and appraiser A.P. Oshina), who concluded that the market value of the land plot at the time of the study is 284,607,000 tenge.
specialist's conclusion No. 14-2022 dated January 24, 2022, executed by IE "Ekey Forensic Services" (forensic expert Omarov A.S.), where he concluded that the market value of the land plot at the time of the study is 305,261,350 tenge.
Thus, the amounts of the 4 estimates range from 284 million 607 thousand to 326 million 50 thousand tenge, whereas the estimate made on November 15, 2021 by order of the Plaintiff (Asia Consulting LLP, report No.00185/NUR) amounted to 126,704,158 tenge. The defendant at the court hearing proved the inconsistency, bias and bias of this assessment. This is also described in detail in the response dated February 14, 2022 to the initial statement of claim of the Akimat of Nur-Sultan. The defendant considers that the opinion of the judicial expert No. 584 dated March 24, 2022, executed by an expert of the republican state-owned enterprise "Institute of Forensic Examinations in the city of Nur-Sultan" (hereinafter – ISE) meets all the requirements of the Assessment Standard. Moreover, the ISE assessment confirms the reliability of all four assessment reports and expert opinions provided to the Court by the Defendant. According to art . 90 of the CPC RK, a re-examination is appointed to examine the same objects and obtain answers to previously raised questions if the expert's conclusion is insufficiently substantiated or his conclusions are questionable, or the procedure and methodology of the examination are significantly violated.
The Court of First instance and the Defendant are convinced that expert Kulbaev E.S. objectively justified his expertise, which complies with the Valuation Standard "Valuation of real estate" and the Law of the Republic of Kazakhstan on Valuation Activities. At the Court hearing, the Defendant insisted on taking as a basis the assessment of the appraiser Kalinin A.N., which was in force at that time. No. 137/2021 dated October 06, 2021, however, Judge Asanova S.S., despite the fact that two independent forensic examinations were previously conducted on May 03, 2021 and January 21, 2022, appointed a third forensic examination, but this time a state one, as a result, the sum of the assessment of the judicial expert Kulbaev E.S. dated March 24, 2022 turned out to be close to the two previous forensic examinations. The defendant considers it necessary to indicate that Judge Asanova S.S. She did not consider the materials submitted by the Defendant to the Kazakhstan Federation of Real Estate (hereinafter referred to as the CFN), which unites 25 real estate companies and real estate Agencies. At the request of the Defendant, the KFN twice analyzed the weighted average prices for land plots in Nur-Sultan with the intended purpose of "commerce" and determined the cost of one hundred square meters on April 12, 2022 in the amount of 9 million 158.3 thousand tenge and on November 26, 2021 in the amount of 11 million 684.6 thousand tenge, which approximately coincided in time with the estimate of LLP Asia Consulting (November 15, 2021).
It follows from the data of the KFN that the value of commercial land plots in the city of Nur-Sultan tends to increase, and if we take the last figure as a basis, it turns out that the value of the seized land plot would be more than 426 million tenge. However, taking into account the reduction in the value of the land plot by even 20%, the amount would be about 340 million tenge, which is close to the amount estimated by appraiser Kalinin A.N. dated October 06, 2021. Unfortunately, Judge Asanova S.S. did not take into account the Defendant's arguments that this land plot is located in an elite area of Nur Sultan is two hundred meters from the Palace of Independence and, in principle, there is nothing to compare this prestigious plot of land with. In this regard, the judicial expert Kulbaev E.S. is right, who applied only one amendment in his opinion (-10%). Since the litigation on the seizure of a land plot for state needs has been going on for more than two years (the decree of the Akim of Nur-Sultan on the compulsory alienation of a land plot was adopted on March 11, 2020), the Defendant was forced to agree to the amount of compensation in the amount of 286,484,450 tenge.
It should be noted that the Plaintiff's representative, S. N., filed an appeal only after one month, i.e. on the very last day, which indicates the Plaintiff's desire to artificially delay the final resolution of this issue. It is known that in accordance with article 67 of the Law of the Republic of Kazakhstan "On State Property", the value of a land plot, as well as immovable property located on a land plot alienated for state needs, is determined in the amount of their market value, regardless of the grounds for the rights to the land plot. The market value of the alienated land plot or other immovable property in connection with the seizure of the land plot for state needs is determined by the appraiser on the date of the assessment, taking into account the provisions of paragraph 1 of Article 208 of this Law. On the basis of Part 1 of Article 68 of the CPC, each evidence is subject to assessment, taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with art. 408 of the CPC RK, a person participating in the case sends a response to the appeal or petition of the prosecutor to the Court of Appeal, to other persons participating in the case, accompanied by documents confirming objections to this appeal or petition of the prosecutor. Thus, the Court of First Instance considered the civil case No. 7111-22-00-2/214 comprehensively and in full. Based on the above and guided by the requirements of art. 408 of the CPC of the Republic of Kazakhstan,
I ask the Court:
To dismiss the appeal of the Akimat of Nur-Sultan against the decision of the Almaty District Court of Nur-Sultan dated April 27, 2022.
To leave unchanged the decision of the Almaty District Court of Nur-Sultan dated April 27, 2022.
Sincerely, lawyer Sarzhanov G.T.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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