Review of the decision of the judicial board on the use of the land plot

On June 15, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan consisted of: the chairman – chairman of the board N.K., judges Sh., R., with the participation of prosecutor Z.Sh., representatives of the plaintiff R.S., defendants L.S., third parties A.D., Ya.A., E.V., I.V., G.A., via mobile videoconference, having considered in open court a civil case on the claim of the state institution (hereinafter referred to as the State Institution) "Management for Control over the Use and Protection of Land" against L.V. and M.V. for the compulsory seizure of a land plot,

received at the request of the defendants for a review of the decision of the judicial Board for civil cases dated February 3, 2022

The State Institution "Directorate for Control over the Use and Protection of Lands" filed a lawsuit against the defendants, stating that the land plot has not been used for its intended purpose since its provision in 2006. The order on the use of the land plot by the defendants has not been executed.

By the decision of the city court of November 11, 2021, the claim was dismissed.

By a decision of the judicial board for civil cases dated February 3, 2022, the decision of the district court was overturned, and a new decision was made to satisfy the claim in the case.

It was decided to withdraw from L.V., M.V. into state ownership a land plot, cadastral number 05-085-071-831, with a purpose for the design and construction of an administrative building with an area of 0.1145 hectares, located at 41/1 Auezova Avenue (hereinafter referred to as the land plot).

A state duty in the amount of 1,459 tenge was collected from the defendants to the state revenue in equal shares.

In the petitions, the defendants L.V. and M.V., referring to the violation by the court of appeal of the norms of substantive and procedural law, ask to cancel the appeal ruling while upholding the decision of the court of first instance.

Having heard the explanations of the representatives of the defendants and third parties who supported the arguments of the petition, the objections of representatives of state bodies to the arguments of the petition, the conclusion of the prosecutor who considered the appeal decision to be canceled with the referral of the case for a new hearing, having examined the materials of the civil case and the arguments of the petition, the judicial board of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the judicial board) comes to the following conclusions.

In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.

During the consideration of the case, such violations were not allowed by the court of appeal.

By virtue of subparagraph 1) of paragraph 1 of Article 65 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), land owners and land users are required to use land in accordance with its intended purpose, and in case of temporary land use - in accordance with the act of land grant or lease agreement.

As a sanction for non-use of a land plot for its intended purpose, the norms of land legislation provide for its withdrawal in compliance with the procedure established by articles 92 and 94 of the Land Code.

It follows from the case file that initially the land plot was provided to B.K. on the basis of a decree of the mayor of the city dated December 12, 2006.

After a series of alienations, the land plot was acquired by M.V. and L.V. under a purchase and sale agreement dated August 28, 2019, and the defendants' ownership was registered in accordance with the established procedure.

During the inspection by the authorized body, it was revealed that this land plot is not used by the defendants for its intended purpose, and therefore, the plaintiff issued orders No. 17, No. 18 dated June 3, 2020, granting the owners a period of one year to take measures to use the land plot for its intended purpose.

On June 4, 2020, the orders were handed over to the defendants and registered with the registration authority as an encumbrance of the right to the land plot.

After the deadline expired on August 20, 2021, a commission survey of the land was conducted, as a result of which it became clear that the regulations had not been fulfilled, there were no buildings according to their intended purpose, construction and installation work was not underway, and the site was not fenced.

When making the decision to dismiss the claims, the court of first instance proceeded from the fact that the defendants had taken measures to develop the land plot before receiving instructions from the authorized body, work was underway to obtain permits for the start of construction, a contract was concluded for the provision of design services, a topography was agreed, and technical conditions for connecting communications were obtained.

The appellate instance believed that the conclusions of the court of first instance set out in the decision did not correspond to the circumstances of the case and the court violated the provisions of paragraph 2 of Article 92 of the Land Code.

At the same time, the court of appeal was guided by paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 "On certain issues of the application of land legislation by courts" (hereinafter referred to as the regulatory resolution), clarifying the application of Article 92 of the Land Code.

In compliance with the requirements of the above-mentioned norms of substantive law, the court of appeal verified whether the original and subsequent owners had carried out excavation, construction and installation work, whether permission had been received from authorized bodies for construction work, a draft design, and the reasons for the late development of land plots.

As established, on April 23, 2021, the State Institution "Department of Land Relations, Architecture and Urban Planning" issued an architectural and planning assignment to the defendants (hereinafter referred to as the APZ), and on June 14, 2021, the approval of the draft design was reasonably refused.

Thus, at the time of the trial by the court of first instance, the defendants had received only the initial materials for the development of construction projects.: APS and technical specifications, the draft design has not been agreed upon, the design and estimate documentation has not been developed, and the project has not been reviewed.

Paragraph 22 of the Rules for the organization of development 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, stipulates that the implementation of construction projects is carried out on the basis of the relevant right to a land plot and the following stages:: 1) obtaining the initial materials for the development of construction projects (except in cases of issuing the initial materials together with the land for construction); 2) development and approval of the sketch (draft design); 3) development of design and estimate documentation and conducting a comprehensive non-departmental expert examination of construction projects; 4) notification of the authorities carrying out state architectural and construction control and supervision on the start of construction and installation work, construction and installation work; 5) acceptance and commissioning of the constructed facility.

That is, the defendants have completed only the first stage of the construction project. While construction and installation work has not been carried out, accordingly, the development of the land has not begun.

In this regard, the court of appeal gave a proper assessment to the defendants' arguments about unjustified refusals by authorized bodies during the passage of licensing procedures. The actions of the State authorities have not been challenged by the defendants.

It follows from the motivated refusals of the State Institution "Department of Land Relations, Architecture and Urban Planning" that the placement of hotel rooms in the planned administrative building does not correspond to the intended purpose of the land plot, will lead to the consolidation of existing buildings, the planned landscaping goes beyond the boundaries of the site, the construction of access roads to the facility will worsen the crowding of adjacent courtyards.

Meanwhile, in the cassation petition itself, the defendants indicate the same circumstances that significantly complicate the development of the land plot, such as the small size of the plot – 0.1145 ha, the location of the plot inside a dense residential area, and others.

The arguments that the land plot was not used for its intended purpose by the previous owners for 13 years, while the inspection was carried out after 1 year for the defendants who bought the plot only in 2019.

Thus, in accordance with paragraph 3 of Article 65 of the Land Code, land owners and land users of a plot bear all the responsibilities that burden a land plot, such as using it for its intended purpose, providing easements, paying taxes and other mandatory payments, and more.

In this case, under the contract of sale dated August 28, 2019, the land plot was transferred to the new owners - defendants, along with the encumbrance in the form of the obligation to use it for its intended purpose.

This conclusion is based on the provisions of paragraph 2 of Article 25 of the Land Code on the transfer of ownership of a land plot to another person with all the encumbrances available at the time of the transaction, and the explanations contained in paragraph 10 of the above-mentioned regulatory decree.

In such circumstances, the judicial board agrees with the conclusions of the appellate instance that a land plot not used for its intended purpose is subject to compulsory seizure in accordance with the established procedure.

The Judicial Board considers that the court of appeal applied the norms of substantive and procedural law correctly, the circumstances of the case were given a proper legal assessment, and therefore there are no grounds for canceling or changing the contested court decision and satisfying the petition.

Guided by subparagraph 1) of Part 2 of Article 451 of THE CPC, the judicial board DECIDED:

The decision of the judicial board for civil cases dated February 3, 2022, is to remain in force, the defendants' petition is not satisfied.

 

 

 

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