Statement of claim for the purchase and forced alienation of a land plot in housing disputes for state needs together with real estate (housing) located on it
The plaintiff appealed to the court with a claim for compulsory alienation by the mayor of Shymkent to the defendant A. with the purchase of a land plot and its immovable property (housing) located on it for state needs. By the decision of the Al-Farabi District Court of Shymkent dated July 10, 2018, the claim was partially satisfied. Cadastral number No. 19-309-015-604 at the address: Shymkent, Aiteke bi Street, No. 30/17, area 0.1000 ha. the land plot (hereinafter referred to as the disputed land plot) and the area on which it is located is 104.8 sq.m. together with real estate (hereinafter – housing), a total of 25,196,159 tenge was paid for state needs and fruit trees worth 956,000 tenge, which were forcibly alienated for state needs. Court costs are mined. By the decision of the judicial board for civil cases of the Shymkent City Court dated August 29, 2018, the decision of the court of first instance was left unchanged. In the petition, the applicant disagrees with the judicial acts adopted in the case, indicating that the conclusions of the courts do not correspond to the circumstances of the case, cancels the judicial acts and asks for a new decision to reduce the cost of alienation for state needs of the disputed land plot belonging to A. and his housing located on it to 19,533,000 tenge.
The judicial board, having heard the arguments of the representative of the plaintiff, the defendant A., the representative of the defendant S., came to the following conclusion. On April 19, 2017, on the basis of the Master Plan of the city of Shymkent and for the construction of facilities of state significance, the resolution of the mayor of Shymkent No. 319 "on the beginning of the forced alienation of a land plot or other immovable property in connection with the seizure for state needs" was adopted. On the basis of this resolution, the cadastral number 19-309-015-604 at the address: Aiteke bi Street, No. 30/17, Shymkent, privately owned by the defendant A., area 0.1000 ha. the issue of seizure of the land plot and housing with an area of 104.8 square meters located here is provided for state needs. On April 20, 2017, a notification No. 24/12146 was sent to defendant A. on the seizure of the above-mentioned real estate for state needs, and this notification was received by the defendant by signing it on May 2, 2017. The disputed land plot belonged to the defendant on the basis of the resolution of the mayor of Shymkent No. 3277 dated October 14, 2005. Limited Liability Company " B " (hereinafter referred to as LLP), in accordance with the results of the appraisal company No. 164/248 dated July 5, 2017, determined the total market price of a land plot and housing subject to compulsory seizure for state needs at 19,533,000 tenge.
Statement of claim for the purchase and forced alienation of a land plot in housing disputes for state needs together with real estate (housing) located on it
According to the report of the expert and advisory appraisal Company LLP on real estate valuation No. 059 dated February 15, 2018, the market price of disputed property was determined in the amount of 24,905,000 tenge. According to the results of the assessment of the Institute of forensic expertise of the South Kazakhstan region dated June 8, 2018 No. 1985, the market value of disputed real estate is set at about 25,196,159 tenge, and the total value of fruit trees located on the land plot to be withdrawn is 956,000 tenge. It should be noted that the defendant A. in accordance with the requirements of the current legislation of the Republic of Kazakhstan, the plaintiff did not submit a corresponding application with the intention of initiating conciliation procedures in relation to forcibly acquired property, that is, he did not ask the plaintiff about the allocation of another land plot or the provision of equipped housing. In the case under consideration, a civil legal dispute arose about the market price of real estate subject to compulsory seizure for the needs of the state. The results of the assessment conducted in June 2018 as the basis for the disputed judicial acts were accepted by local courts as relevant and valid evidence in the case. Having studied the materials of the civil case and the arguments of the petition, the judicial board came to the conclusion that the disputed judicial acts are subject to change on the following grounds.
In accordance with the requirements of Article 87 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the IP), "the amount, forms of payment and terms of repayment of the value of a land plot in case of forced alienation for state needs are established by Chapter 6 of the law of the Republic of Kazakhstan "on state property". Paragraph 2 of Article 67 of the law of the Republic of Kazakhstan dated March 1, 2011 No. 413-IV" on state property "(hereinafter referred to as the law) provides for the norm" the value of a land plot alienated for state needs, as well as real estate located on a land plot, is determined in the amount of their market value, regardless of the grounds for Defendant A. owned the disputed land plot and the housing built on it since 2005. The conclusions of local courts that the value of a land plot and housing alienated for state needs should be set at market value meet the requirements of the current legislation. However, local courts have not applied the norms provided for in paragraph 3 of Article 67 of the above law, which are subject to application in the process of considering or resolving this dispute. In accordance with this norm, "the market value of a land plot or other immovable property alienated in connection with the seizure of a land plot for state needs is determined by an independent appraiser in accordance with Article 208 of this law at the moment when the owner or land user receives a notification of the upcoming forced alienation of a land plot for state needs". The fact that the specified norm has an imperative legal force was not taken into account by the courts. According to the evidence collected in the civil case, the notice of alienation of the land plot and real estate located on it in the interests of the state was sent to defendant A. on April 20, 2017, and he received the notice on May 2, 2017. Therefore, the market value of real estate alienated in the interests of the state was to be determined in accordance with April-May 2017. On the grounds of the plaintiff and in accordance with the assessment results of LLP "B" dated July 5, 2017, the market price of the disputed real estate is set at 19,533,000 tenge. The judicial board concluded that in favor of the defendant, This specified value of the mentioned property must be paid. On June 8, 2018, local courts accepted the assessment results of the Institute of forensic expertise in the amount of 25,196,159 tenge as valid evidence in relation to this case. This conclusion of the courts does not meet the requirements of the current legislation.
Taking into account the above circumstances, the judicial board comes to the conclusion that local courts have made mistakes in the application of current material laws, the listed shortcomings serve as a legal basis for changing the judicial acts being challenged. In particular, the area subject to alienation for state needs in favor of the defendant A. 0.1000 ha. the market value of a land plot with Cadastral number No. 19-309-015-604 and a residential building with an area of 104.8 square meters located on it is 19,533,000 tenge and fruit trees-956,000 tenge, in general-20,489,000 tenge. On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan for civil cases amends the judicial acts of local courts and pays the defendant A. Cadastral number 19-309-015-604 at the address: Shymkent, Aiteke bi Street, No. 30/17, area 0.1000 ha. the market value of the land plot and real estate (housing) located on it with an area of 104.8 square meters, the alienation of fruit trees for state needs has been reduced to 20,489,000 tenge. Other parts of the judicial acts were left in force, and the Cassation petition of the plaintiff was partially satisfied.
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