Seizure of land plots for State use

Jurisdiction. Claims on disputes are brought by the executive body to the district (city) court at the location of the land plot subject to alienation for state needs. In cases where the defendants in the lawsuits indicate owners, land users who are non-governmental legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using housing construction or another site for entrepreneurial activities, such lawsuits are filed with specialized interdistrict economic courts.

In accordance with Article 88 of the Land Code, paragraph 7 of Article 65 and paragraph 4 of Article 69 of the Law "On State Property", the local executive body has the right to file a lawsuit with the court if:

a) the owner or land user does not agree with the resolution on the commencement of compulsory alienation of a land plot for state needs or other immovable property in connection with the seizure of a land plot for state needs;

b) no agreement has been reached with him on the cost of the seized land plot or other conditions for the compulsory alienation of the land plot;

c) no agreement has been reached on the transfer of property, including by persons whose rights in relation to the seized property will be terminated or restricted during forced alienation.

In accordance with the Tax Code, the plaintiff in cases of this category is exempt from paying the state fee, and therefore, when deciding on the satisfaction of the claim, the court costs must be borne by the defendants.

Definition of the legal relations of the parties and the law to be followed. In accordance with paragraph 1 of Article 61 of the Law "On State Property", the subject of the claim is the compulsory seizure of a land plot. Alienation can be carried out exclusively in relation to a land plot. The subject is also the amount of monetary compensation for the seized land. If the right of private ownership of a land plot cannot be confirmed on the basis of information from the legal cadastre and (or) title documents, then compulsory alienation for state needs is carried out in respect of buildings, structures and other real estate objects (dwellings, residential buildings (residential buildings), residential premises (apartments), non-residential premises), located on this land plot.

The civil rights and obligations of this category of cases arise from administrative acts (a decree of the Government or a local executive body on the compulsory alienation of a land plot for state needs), which, by virtue of legislation, have civil consequences (termination of private property rights and land use rights, payment of monetary compensation).

Persons involved in the case. The plaintiff is the akim of the relevant administrative-territorial unit. According to subparagraph 4) of Article 1 of the Law "On Local State Self–Government and Management in the Republic of Kazakhstan", a local executive body (akimat) is a collegial executive body headed by the akim of a region, a city of republican significance and the capital, a district (city of regional significance), exercising local state administration and self-government in the relevant territory within its competence; the defendant is the owner of the land plot; – non-governmental land user. The courts should establish the circle of persons living with the owner, involving them in the consideration of the case, since in most cases the local executive body, together with demands for the seizure of land for public needs, also makes demands for eviction. Such demands are correctly motivated by the fact that, in accordance with paragraph 1 of Article 30 of the Law "On Housing Relations", upon termination of ownership of a dwelling on the grounds provided for in subparagraphs 2), 4) and 5) of paragraph 1 of Article 29 of the Law "On Housing Relations", members (former members) of the owner's family are evicted from the dwelling. and acquire the right to live in a dwelling received as compensation for the former dwelling.

The opinion about the need to involve the State Institution "Akim's Office" in the case is erroneous, since the akim's office is a state institution that ensures the activities of the local executive body and the mayor of the city. According to articles 26, 29, 30, 33 of the Law "On Local Government and Self-Government in the Republic of Kazakhstan", the akim represents the interests of the relevant administrative-territorial unit in relations with citizens, legal entities and government agencies.

Civil cases on claims for the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs are considered and resolved within one month from the date of completion of the preparation of the case for trial (paragraph 7 of Article 65 of the Law "On State Property").

Facts to be established and proved. Evidence and proof.

Compliance with the pre-trial dispute settlement procedure, the procedure for the seizure of land, and the deadline for delivery of the notification is mandatory. In accordance with the rules of Article 64 of the Law "On State Property", the executive body is obliged, no later than three calendar days after the publication of the resolution, to send to the owner or non-governmental land user a written notification of the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs, with the attachment to it of a draft agreement on the purchase of a land plot or other immovable property in connection with the seizure of a land plot for state needs, by mail with mandatory notification of receipt of the mail item. In the absence of a notification of receipt of a postal item, the documents specified in paragraph 1 of Article 64 of the Law "On State Property" are sent repeatedly. Documents about this, correspondence with the defendant on this issue are attached to the statement of claim in confirmation of the fact of compliance with the pre-trial settlement of the dispute. Failure to comply with the specified requirements of the Law is the basis for the return of the statement of claim from the stage of its adoption in accordance with subparagraph 1) part one of Article 152 of the CPC.

During the preparation of the case for trial, it is necessary to establish whether equivalent housing was offered to the defendant, since according to article 15 of the Law "On Housing Relations", when demolishing an apartment building in connection with the forced alienation of land for state needs, the owner is provided with a comfortable dwelling or compensation in the amount of the market value of the dwelling.

A controversial fact in cases of this category, which must be proved, is the correctness of determining the amount of compensation for the seized land. When determining the amount of compensation for the value of a land plot, the courts should take into account its intended purpose. From the literal interpretation of paragraph 2 of Article 67 of the Law "On State Property" it follows that in the case of seizure for state needs of a land plot previously provided for personal subsidiary farming for individual housing construction, its value is determined as the sum of the market value of the land plot and the residential building located on it. Thus, the value of a land plot is determined by the cadastral (estimated) value if the subject of the transaction is only a land plot without buildings (structures) located on it. If there is an individual residential building or other structure on the land plot, then their value is determined by the contract price, which does not exceed their market value. In case of excess, the owner is offered the market value of the property.

This is consistent with the provisions of paragraphs 1 and 3 of Article 52 of the Land Code, from which it follows that ownership of buildings (structures, structures) entails ownership of the land that is occupied by these buildings (structures, structures). Alienation of ownership of a land plot that is occupied by buildings (structures, structures), as well as intended for their operation, without appropriate alienation of the specified real estate, as well as alienation of real estate without appropriate alienation of the land plot that is occupied by the specified real estate, is not allowed.

The object of the transaction for the alienation of the land plot on which the building (structure, structure) is located is both the land plot and the building (structure and structure) located on it, as a single object.

Some issues to pay attention to:

In accordance with paragraph 1 of Article 67 of the Law "On State Property": The value of a land plot alienated for state needs (excluding losses) acquired by the owner from the State shall be determined in the amount of the amount paid to the State, with the exception of the cases provided for in paragraph 2 of this article. It follows from the literal content of this paragraph that:

1) the subject of compulsory alienation is any land plot, regardless of its intended purpose;

2) acquired by a person from the state for a certain amount of money;

3) not occupied by inseparable buildings and structures.

In this situation, if a person has acquired land from the state and has not incurred the costs associated with the construction of any facilities, then this land plot is forcibly alienated at the same cost that was paid to the state.

If such a land plot was used to extract useful properties and at the time of the actual seizure of the land plot they were not received (for example, fruit and vegetable products, etc.), the person from whom the land plot is being seized has the right to raise the issue of compensation for losses (lost profits).

The value of a land plot alienated for state needs, provided for individual housing construction (IHS), for personal subsidiary farming (except for field plots), on which an individual residential building is located, is determined in the amount of the value of the land plot and the immovable property located on it in an amount not exceeding their market value.

The value of a land plot alienated for state needs, transferred to the owner by a civil law transaction or by a court decision, is determined in the amount of the value specified in the civil law contract or in a court decision, but not exceeding the market value. If the price for the land plot is not specified in the civil contract, the value of the land plot is determined by its cadastral (estimated) value.

It follows from the first paragraph of paragraph 2 of Article 67 of the Law "On State Property" that the object of compulsory seizure and valuation is a land plot that was provided by the state free of charge for residential housing and for personal subsidiary farming (except for field plots) and an individual residential building.

The right to receive a land plot for residential housing and for running a subsidiary farm, as social support, is of a one-time nature due to the requirements of paragraph 3 of Article 9 and subparagraph 14) of paragraph 1 of Article 48 of the Land Code.

Since a person is deprived of the opportunity to receive a land plot for housing and communal services from the state free of charge, this paragraph provides for reimbursement of the cost of the land plot together with housing construction at a price not higher than the market price, which is consistent with the provisions set out in Article 26 of the Constitution of the Republic of Kazakhstan, Articles 255-257 of the Civil Code and Article 52 of the Land Code, aimed at protecting constitutional rights. citizens' rights to property rights.

These rules do not apply to other land plots with a different purpose.

It follows from the second paragraph of paragraph 2 of Article 67 of the Law "On State Property" that from the moment of adoption of the Law "On State Property", if a land plot is acquired under a paid civil transaction from another person, the value is determined by the price specified in the civil transaction.

The land plot specified in paragraph 2 of paragraph 2 of Article 67 of the Law "On State Property" should be understood as any land plot, regardless of its intended purpose, free of buildings and structures.

The second sentence of this paragraph concerns the case if the price of the transaction is not specified in the civil contract, which is unlikely, or if a gratuitous transaction was made (donation, acquisition of property by inheritance).

In this case, the amount to be paid to the owner must correspond to the cadastral value of the land plot.

However, there are cases when the cadastral value is higher than the market value. In this case, the amount corresponding to the market value of the land plot is payable to the owner.

In any case, the second paragraph of paragraph 2 of this article refers only to a plot of land, regardless of its intended purpose, not occupied by buildings and structures firmly connected to the ground.

It should also be borne in mind that there are cases when a land plot was acquired in 2011, after the enactment of the Law of the Republic of Kazakhstan "On State Property", however, forced alienation is carried out, for example, in 2016 with a significant difference in the transaction price and market value.

In this regard, it should be borne in mind that if there is objective data indicating a significant difference between the price of the GPO transaction and the market value, the interested party has the right to demand compensation for losses (for example, over 5 years in the form of an increase in the value of the land).

The value of the immovable property located on the land plot is determined in the amount not exceeding its market value.

It follows from paragraph 3 of Article 67 of the Law "On State Property" that if there is a building or other structure firmly connected to the land on a land plot acquired from the state or from another person in a transaction for a fee or free of charge, compensation for this immovable property is carried out at a value not exceeding the market value.

The same clause applies if the building is built on a plot of land that is in use, for example, on the basis of a long-term lease.

Judicial practice

By virtue of article 26 of the Constitution, compulsory alienation of property for State needs may be carried out in exceptional cases provided for by law, subject to equivalent compensation.

The compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs may be carried out exclusively with respect to a land plot.

However, paragraph 1 of Article 61 of the Law "On State Property" (hereinafter referred to as the Law) provides for an exception.

The mentioned norm provides for the possibility of compulsory alienation for state needs in respect of buildings, structures and other real estate objects (dwellings, residential buildings (residential buildings), residential premises (apartments), non-residential premises) located on a land plot if the right of private ownership of the land plot cannot be confirmed on the basis of information from the legal cadastre and (or) title documents.

By virtue of paragraph 2 of Article 86 of the Land Code, paragraph 2 of Article 66 of the Law, when transferring rights to real estate during the time specified in paragraph 1 of Article 66 of the Law to another person by alienation or on other grounds, as well as when changing the rightholder by virtue of universal succession, the procedure for compulsory alienation of land or other immovable property in accordance with In connection with the seizure of a land plot for state needs, it is applied (continued) to the new rightholder. Consequently, the transfer of rights to real estate to another person does not interfere with the procedure of compulsory alienation and does not require the new rightholder to be notified of the impending seizure of the land.

Paragraph 7 of the regulatory resolution of the Supreme Court "On certain issues of the application by courts of legislation on the compulsory alienation of land for public needs" clarified that the plaintiff's failure to comply with the legislation on written notification of the landowner and non-governmental land user on the purchase of land (land use rights) for public needs no later than one year, and in the cities of Astana and Almaty – no later than three months before the upcoming foreclosure, as well as violation of the legislation on filing such a claim later than two years from the date of notification to the landowner or land user, are grounds for the court to dismiss the claim, since the extension and restoration of the specified time limits are not provided for by legislative acts.

The list of exceptional cases for the seizure of a land plot for state needs is established by paragraph 2 of Article 84 of the Land Code, evidence must be provided to confirm the cases. Example. The court refused to satisfy the akim's claim to S. for the compulsory seizure of a land plot for state needs, since the plaintiff's arguments about the existence of a master plan of the city, which provides for the construction of a Palace of Schoolchildren on the land, were not confirmed in court, the amended general plan of the city has not been approved and is under consideration.

According to paragraph 1 of Article 15 of the Law "On Housing Relations", when demolishing an apartment building in connection with the forced alienation of land for state needs, the owner, prior to the demolition of his dwelling, is provided with a well-maintained dwelling or compensation is paid in the amount of the market value of the dwelling. This provision is consistent with the provisions of Article 119-1 of the Law "On Housing Relations" and is explained in paragraph 8 of the regulatory decree of the Supreme Court "On certain issues of the application by courts of legislation on the compulsory alienation of land for public needs", according to which the resolution of the issue of the purchase price of land and other terms of purchase is the responsibility of the local executive body. By virtue of the above provisions of the Law "On Housing Relations", the terms of compensation for the alienated property must be proposed by the plaintiff, but the choice is left to the owner of the property. Example. The court decided: to make compulsory alienation of real estate owned by A. and Z. The defendants were evicted together with the residents from the disputed residential premises, with the provision of equivalent comfortable housing to them as compensation for the alienated real estate.

The basic principle of compulsory alienation is the equivalent compensation of property. The value of the seized land plot is determined depending on the basis of the rights to the land plot from the owner and the land user.

Considering cases of this category, the courts, when determining the range of circumstances to be clarified, should establish the grounds for the emergence of rights to a land plot from the owner or land user, depending on which the value of the land plot is determined.:

If the land plot is acquired by the owner from the state, the value is determined in the amount of the amount paid to the state. The exception is cases of incomplete payment of the amount for the land plot, in which the amount of compensation must correspond to the amount paid to the state. The provisions of paragraph 1 of Article 67 of the Law provide for the acquisition of a land plot in a paid transaction, where the seller is the State.

If a land plot is provided for individual housing construction, for the management of a personal subsidiary farm on which an apartment building is located, the value of the land plot is determined in an amount not exceeding its market value. The provisions of the first paragraph of paragraph 2 of Article 67 of the Law provide for cases when a land plot is provided by the state free of charge not for commercial purposes, but only for housing a residential building, for personal housekeeping.

If the land plot has passed to the owner under a civil law transaction or by a court decision, the legislator provides for a different procedure for determining the value, depending on whether the value of the land plot is indicated in the contract or not.:

- if it is specified, the value is determined in the amount of the value specified in the civil contract or in the court decision, but not exceeding the market value,

- if it is not specified, the cost is determined by its cadastral (estimated) value.

It should be noted that the above different procedure for determining the value refers only to the issue of determining the value of a land plot, and not other immovable property located on the land plot.

According to the first paragraph of paragraph 2 of Article 67 of the Law, the value of a land plot alienated for state needs, provided for individual housing construction, for personal subsidiary farming (except field plots), on which an individual residential building is located, is determined in the amount of the value of the land plot and the immovable property located on it in an amount not exceeding their market value. cost. Consequently, the determination of the value of the withdrawn land plot at the market price is provided only if it is provided to the owner by local executive state bodies for individual housing construction or personal subsidiary farming. That is, when determining the amount of compensation for the value of a land plot, the courts should take into account its intended purpose.

In accordance with the second paragraph of paragraph 2 of Article 67 of the Law, the value of a land plot alienated for state needs, transferred to the owner by a civil transaction or by a court decision, is determined in the amount of the value specified in the civil contract or in a court decision, but not exceeding the market value. If the price for the land plot is not specified in the civil contract, the value of the land plot is determined by its cadastral (estimated) value.

The law unambiguously determines the value of a land plot based on the transaction price. Deviation from this rule is possible only if the value of the land plot specified in the civil law transaction is higher than the market value of the land plot. The interests of the owner of the land plot will not be violated and are subject to protection by paying him the amount of damages, the amount of which consists of the difference between the value of the land plot at the transaction price and the market value of the land plot.

In accordance with subparagraph 1) of Article 165 of the Land Code, losses caused to owners or land users are subject to full compensation in the following cases: forced alienation of a land plot for state needs, entailing termination of ownership or land use rights. According to paragraph 2 of Article 166 of the Land Code, when determining the amount of compensation, it includes:

1) the value of the land plot or land use rights;

2) the market value of the real estate located on the site, including fruit trees and perennial plantings;

3) the cost of the costs associated with the development of the land, its operation, carrying out protective measures, increasing soil fertility, taking into account their inflation;

4) all losses caused to the owner or land user by the seizure of the land plot at the time of termination of ownership or land use rights, including losses that they incur in connection with the early termination of their obligations to third parties;

5) lost profits.

These norms correspond to the norms of paragraph 4 of Article 67 of the Law, according to which the amount of compensation is determined in accordance with paragraphs 4 and 5 of Article 9 of the Civil Code, based on the value of property and losses in full caused to the owner or a non-governmental land user as a result of forced alienation of land for state needs and (or) caused by the early termination of performance by the owner or a non-governmental land user's obligations to third parties.

If there are disagreements in the valuation documents provided by the parties, as a result of which it is not possible to determine the amount of compensation for the property being forcibly disposed of, the court may involve a specialist in the field of valuation activities to provide written advice or to produce a written assessment report. If there is disagreement about the size of the market value of the property being evaluated due to the ambiguity of the building material used for the object under study, then the court should order a forensic examination.

In paragraph 5 of the normative resolution of the Supreme Court "On certain issues of the application by courts of legislation on the compulsory alienation of land for state needs", it is clarified that the defendant's claims to the plaintiff for the provision of another equivalent land plot, comfortable housing in return for the monetary compensation offered by the plaintiff are not counterclaims. Therefore, all issues related to the choice of the form of compensation by the owner should be considered by the court within the framework of the claim filed by the local executive body.

The operative part of court decisions should indicate not only the forced seizure of a land plot with the payment of monetary compensation, but also the termination of the rights of the owner or non-governmental land user and the emergence of state rights to this property after payment of compensation.

The list of the main documents attached to the statement of claim

Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases the claims, which may include:

- a resolution of the Government or a local executive body on the compulsory alienation of a land plot for state needs, accompanied by an extract from the general plan of the city (locality) regarding the construction of facilities falling under the list of exceptional cases established by paragraph 2 of Article 84 of the Land Code;

- written notification of the authority on the decision, indicating the date of its sending to the owner, non-governmental land user and a note on receipt;

- a contract of privatization, purchase and sale, donation and (or) other identification, title documents for ownership or land use of a land plot, housing construction;

- an act on the acceptance of housing construction into operation, a technical passport, plans for housing construction and a land plot, information from the legal cadastre on the state registration of rights to real estate and transactions with it, or, if necessary, land cadastral affairs;

- an assessment report confirming the market value of the land plot and the immovable property located on it, or the cadastral (estimated) value if there is no price for the land plot in the civil contract.;

- a document confirming the proposals of the local executive body on the provision of another equivalent land plot, comfortable housing;

- certificates of encumbrances, if any;

- information on sending a copy of the resolution of the local executive body on the seizure of the land plot to the registration authority;

- information about the publication in the media of a resolution on the seizure of a land plot;

- a document confirming the proposal of the local executive body to reimburse the cost of the land plot to be seized, indicating the proposed price;

- other documents that, in the plaintiff's opinion, confirm his claims.

Laws to be applied in the consideration and resolution of cases

The Constitution (article 26).

GK.

The Land Code (Chapter 9).

Laws:

- "On State property" (Chapter 6);

- "On housing relations";

- "On local government and self-government in the Republic of Kazakhstan";

- "On individual housing construction";

- "On architectural, urban planning and construction activities in the Republic of Kazakhstan";

- "On evaluation activities in the Republic of Kazakhstan".

Regulatory rulings of the Supreme Court:

- No. 8 dated December 25, 2006 "On certain issues of Application by Courts of Legislation on Compulsory Alienation of Land Plots for State Needs";

- No. 6 dated July 16, 2006 "On certain issues of the application of Land Legislation by Courts"

Assessment standards "Assessment of a land plot or other immovable property alienated for state needs in connection with the seizure of a land plot for state needs."

 

 

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