Statement of claim for the demolition of an illegally erected facility

 

 

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Medeu District Court of Almaty

Plaintiff:........

BIN ..............

Almaty, pr. .........., 90

tel. .............

The defendant:

K.E.A.

INN ....

Almaty, Zh...., d....., sq. 5

tel.: +7 (777) ........

Third parties:

A.B.K.

INN ……

Almaty, K. D. str., sq. 6

phone:8701……

KSU "Department of Urban Planning and Urban Studies of Almaty"

BEAN....

Almaty, pr. ..., building ..

 

Statement of claim

about the demolition of an illegally erected facility

 

The Department of Control of the City of Almaty (hereinafter referred to as the Department) is authorized to perform control and supervisory functions in the field of architectural, urban planning and construction activities and land legislation of the Republic of Kazakhstan.

Earlier, the Department received a letter from gr. A.B.K. Head of the Department No.ZHT-2022-02100466, requesting an inspection and taking measures at the facility located at: Almaty, Medeu district, K (G) street. ...., sq. 5.

According to the agreement on the privatization of the apartment (house) dated 08.04.1999. The owner is Mr. K.E.A. (hereinafter referred to as the Owner), and there is also a technical passport of the facility dated 17.01.2011.

On the basis of a letter from Mr. A.B.K., the Office registered an act on the appointment of an audit in the State Institution "Management of the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan for the city of Almaty" No. 465 dated 08.08.2022 in respect of the owner of Mr. K.E.A.

As a result of an inspection of the facility located at the address: Almaty, Medeu district, K (G..) str., 5, sq. 5, it was found that in violation of paragraphs 4-1, paragraph 1, Article 17 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter - the Law) without a design The construction of an extension with a total area of 15 sq.m. is currently underway by demolishing the cold extension.

In this regard, administrative measures have been taken under art. 316 Part 1 of the Code of Administrative Offences of the Republic of Kazakhstan.

At the same time, gr. K.E.A. was issued an order for the elimination of violations for No. 194 dated 08/09/2022.

The Office, based on the act on the appointment of an audit for No. 687 dated 17.10.2022, registered with the Office of the Committee on Legal Statistics and Special Accounts of the State Duma of the Republic of Kazakhstan for the city of Almaty, established that gr. K.E.A. failed to comply with the requirements of the regulation on the elimination of violations for No. 194 dated 09.08.2022, violating paragraph 3 of art. 36 of the Law of the Republic of Kazakhstan "About architectural, urban planning and construction activities in the Republic of Kazakhstan".

In this regard, administrative measures have been taken against Mr. K.E.A. under Article 462, Part Z of the Administrative Code, with the further referral of the administrative case to the Specialized Interdistrict Court for Administrative Offenses of Almaty (hereinafter referred to as the SMSpoAP) for a procedural decision.

According to the resolution of the SMSpoAP dated 11/08/2022, gr. K.E.A. was found guilty of committing an administrative offense under part 3 of Article 462 of the Administrative Code.

According to Article 12 of the Law, the use of land plots by owners or land users for development (including laying communications, engineering preparation of the territory, landscaping, landscaping and other types of site development) can only be carried out in accordance with the design documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan and compliance with the intended purpose or easement, zoning of the territory, building regulation lines, rules organization of development and licensing procedures in the field of construction and operation.

According to P. 31 art.1 of the Law construction activity (hereinafter referred to as construction) - activities related to the creation of fixed assets for industrial and non-industrial purposes through the construction of new and (or) modification (expansion, modernization, technical re-equipment, reconstruction, restoration, capital repairs) of existing facilities (buildings, structures and their complexes, communications), installation (dismantling), installation of technological and engineering equipment, (production) of construction materials, products and structures, as well as carrying out conservation work on the construction of unfinished facilities and post-disposal facilities that have exhausted their resources.

In accordance with paragraph 2 of Article 68 of the Law, one of the requirements for the construction process is: the customer who intends to carry out the construction of the facility is obliged, in accordance with the land legislation of the Republic of Kazakhstan, to obtain a decision from the local executive authorities of districts (cities) on granting the appropriate right to land.

Also, in the process of carrying out construction and installation work, it is necessary to be guided by the Law and by-laws, namely: the rules for organizing construction and passing licensing procedures in the field of construction, approved by Order No. 750 of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 (hereinafter referred to as the Rules).

In accordance with paragraph 22 of the Rules, the implementation of construction projects is carried out on the basis of the relevant right to a land plot and the following stages::

obtaining raw materials for the development of construction projects;

development and approval of the sketch (draft design);

development of design and estimate documentation (hereinafter referred to as design) and conducting a comprehensive non-departmental examination of construction projects (hereinafter referred to as expertise);

notification of state bodies

architectural and construction control and supervision of the start of construction and installation works, the implementation of construction and installation works;

acceptance and commissioning of the constructed facility.

 

In other words, in order to carry out construction, the Owner must have a plot of land, where, prior to the start of construction and installation work, a number of actions will be taken to complete the construction licensing procedures.

In connection with the above, the Owner violated the rules for the organization of construction and the passage of licensing procedures in the field of construction, as well as the requirements for the construction process provided for in Article 68 of the Law of the Republic of Kazakhstan "On Architectural, urban planning and construction activities in the Republic of Kazakhstan."

According to Article 238 of the Civil Code of the Republic of Kazakhstan, the moment the acquirer's ownership right arises under the contract. If the contract on alienation of property is subject to state registration or notarization, the acquirer's ownership right arises from the moment of registration or notarization, and if necessary, both notarization and state registration of the contract - from the moment of its registration.

In accordance with Article 7 of the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property" (hereinafter referred to as the Law), rights (encumbrances) to immovable property in accordance with Articles 4, 5 and 6 of this Law, subject to mandatory state registration in the legal cadastre, arise from the moment of their state registration, unless otherwise provided It is established by this Law and other legislative acts.

If registration is not refused, the moment of state registration is recognized as the moment of filing the application. However, due to the lack of permits and registration with the authorized body of the act of acceptance of the facility into operation, the requirements of the current legislation of the Republic of Kazakhstan have been violated.

According to paragraph 2 of Article 244 of the Civil Code of the Republic of Kazakhstan, a person who carries out unauthorized construction does not acquire ownership rights to it. It does not have the right to dispose of the building - to sell, donate, lease, or make other transactions.

An unauthorized building is subject to demolition by the person who carried it out or at his expense, except in the cases provided for in paragraphs 3 and 4 of this Article.

Moreover, paragraph 4 of paragraph H of Article 244 of the Civil Code of the Republic of Kazakhstan stipulates that ownership of an unauthorized building cannot be recognized for these persons if the preservation of the building would entail violations of the rights and legally protected interests of others or would endanger the life and health of citizens.

In accordance with paragraph 5 of the Rule, unauthorized construction of facilities for various purposes on the territory of settlements is not allowed.

In this regard, guided by Articles 148-149 of the CPC RK,

I ask the Court:

 

To recognize an unauthorized building in the form of a capital foundation with a total area of 15 sq.m., located at the address: Almaty, Medeu district, ul. K (G....), d. ..., sq. 5- unauthorized building;

Demolish an unauthorized building in the form of a capital foundation with a total area of 15 sq.m., located at the address: Almaty, Medeu district, ul. ... (G...), d. ..., sq. 5, at the expense of the defendant – K....E.A.

With respect,

                                                           ______________/_______________________________

 

 

 

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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