Statement of claim for the removal of obstacles in the use of land
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To the Medeu District Court of Almaty
Plaintiff: ....... Duman Zhenisovich IIN ....... Almaty, ul. ........., D. 22
Plaintiff's representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, 50 Zhibek Zholy ave., office 202,
Business center Quarter info@zakonpravo.kz / www.zakonpravo .kz + 7 727 978 5755; +7 700 978 5755
The defendant: ...... Andrey Anatolyevich IIN ........ Almaty, Askarova str., 8, block 1403
Third person: ........ Amangeldy Aktybekovich, Almaty, ul......., 76, sq. 149
Statement of claim
on the removal of obstacles in the use of land
On February 02, 2007, between ..... Duman Zhenisovich (hereinafter referred to as the Plaintiff) and ...... Azimzhan, acting on behalf of........ Amangeldy Aktybekovich, a purchase and sale agreement was concluded for private property on a land plot with an area of 0.053 hectares, cadastral number 03-051-024-...., located at: Almaty region, Talgar district, Koktyubinsky district, Druzhba horticultural association, plot No. 89, which is registered in the notary's register for No. 2-621 and registered with the RSE "Center for Real Estate in the Almaty region" on March 07, 2007. In accordance with Part 2 of Article 238 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), if an agreement on the 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.
On February 22, 2007, the Talgar district Department of Land Relations, on the basis of a purchase and sale agreement dated February 02, 2007, issued a private ownership deed No.0387999 for a land plot with a total area of 0.053 hectares, cadastral number 03-051-024-514, located at: Almaty, Talgar district, ...... with/Oh, the Druzhba horticultural association, plot No. 89. In accordance with Part 1 of Article 188 of the Civil Code of the Republic of Kazakhstan, the right of ownership is the right of a subject, recognized and protected by legislative acts, to own, use and dispose of his property at his discretion. According to Part 2 of the same article, the owner has the right to own, use and dispose of his property. It should be noted that at the time of purchase, no one disputed this land plot, the purchase and sale agreement dated February 02, 2007 was executed properly, there is no information about a violation of the procedure at its conclusion, and the Plaintiff, being a bona fide buyer, paid for it the entire amount under the purchase and sale agreement dated February 02, 2007. of the year.
Statement of claim for the removal of obstacles in the use of land
According to Part 3 of Article 188 of the Civil Code of the Republic of Kazakhstan, the owner has the right, at his discretion, to perform any actions with respect to his property, including alienating this property to other persons, transferring to them, while remaining the owner, his powers to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in a different way. On May 07, 2007, a bank loan agreement No. F17/17/2007 (hereinafter referred to as the Agreement) was concluded between JSC Eurasian Bank (hereinafter referred to as the Bank) and ..... D.Zh. According to clause 2.3 of the Loan Agreement, in order to ensure the fulfillment of its obligations, the Borrower provided a land plot located at the address: Almaty region, Talgar district, Koktyubinsky rural settlement, Druzhba horticultural association, plot 89. There is a report on the valuation of real estate No. N-5597 dated May 03, 2007, prepared by Motor Bureau LLP, where the value of the land plot was 150,000 dollars or 18 276 480 tenge. As a result of improper fulfillment of the obligations assumed under the Agreement, the Bank appealed to the court. By the decision of the Medeu District Court Almaty dated July 11, 2011, the amount of debt in the amount of 9,146,42 tenge and the state duty in the amount of 274,392 tenge were collected from the borrower in favor of the bank. On November 12, 2013, the private bailiff ....... A.S. issued a decision to institute enforcement proceedings against the Plaintiff.
Subsequently, the arrested Plaintiff's property was sold by the bailiff through bidding. According to the purchase and sale agreement dated March 05, 2014, concluded between the private bailiff of the executive district of the Almaty region ....... A.S., acting on the basis of state license No. 605 dated August 27, 2012 and the Order of the Chairman of the Committee for the Execution of Judicial Acts of the Ministry of Justice of the Republic of Kazakhstan No. 136 dated October 21, 2012, and the buyer ........ Asan Kasenovich, the latter acquired the seized property of the debtor Imashev D.Zh. in the form of a land plot (cadastral number 03-051-024-514), with an area of 0.0530 hectares at the address: Almaty region, Talgar district, Koktyubinsky rural district, Druzhba horticultural association, plot No. 89. In January 2015 ........ Asan Kasenovich filed a lawsuit against Egai Andrey Anatolyevich for tying up obstacles to the use of the land, demolishing unauthorized buildings, fences, fences on the land located at the address: Almaty, Medeu district, horticultural association Druzhba, plot 89, cadastral number 20-315-075-003, collection of a state fee in the amount of 1982 tenge, removal of an obstacle to the use of the land, since ...... A.A. erected a fence on his land, installed a gate and a gate, thereby depriving ...... A.K. access to your land plot. After that........ Andrey Anatolyevich filed a counterclaim against ....... Asan Kasenovich, ....... Zhanna Lazarevna, ........ Amangeldy Aktybekovich, ...... Duman Zhenisovich, Almaty city branch of RSE "NPTsem", Department of Justice of Almaty, private bailiff of the executive district of Almaty ....... To Aslan Serikzhanovich, Eurasian Bank Joint-Stock Company, on the invalidation of the Act on the right of Private ownership of a land plot issued by the Talgar District Land Resources Management Committee dated September 13, 2004 for No. 0314649, an entry on the issuance of this act was made in the Book of Records of acts on the right of ownership of a land plot, the right of land use for No. 5161, in the name of ....... Amangeldy Aktybekovich and his registration, purchase and sale agreement dated February 02, 2007 between Abdukarimov Azimzhan, acting on behalf of ........ Amangeldy Aktybekovich, and ........ Duman Zhenisovich private ownership of a land plot with an area of 0.053 hectares, located at: Almaty region,
Talgarsky district, Druzhba horticultural association, plot No. 89 and its registration, Certificate of private ownership of the land plot issued by the Talgarsky district Department of Land Relations dated February 27, 2007 in the name of ....... Duman and his registration, Mortgage Agreement No.F 17/171/2007 dated May 07 2007 between Eurasian Bank JSC and Duman Zhenisovich and his registration, Purchase and Sale Agreement dated March 05, 2014 between Aslan Serikzhanovich, private bailiff of the executive district of the Almaty region ., acting on the basis of state license No. 605 dated August 27, 2012 and the Order of the Chairman of the Committee for the Execution of Judicial Acts of the Ministry of Justice of the Republic of Kazakhstan No.136 dated October 21, 2012, hereinafter referred to as the "Organizer of the Auction", and the buyer Baitoleuov Asan Kasenovich of the seized property of the debtor ...... D.Zh. in the form of a land plot (cadastral number 03-051-024-514), with an area of 0.0530 hectares at the address: Almaty region, Talgar district, Koktyubinsky rural district, Druzhba horticultural association, plot No. 89, auctions conducted by Private bailiff Kasenov A.S., an Act on the right of private ownership of a land plot issued by the Almaty city branch of the RSE NPCEM for No. 0087581 dated September 19, 2014 addressed to Asan Kasenovich Baytoleuov, on the elimination of violation of ownership of land plot No. 82 in the Druzhba horticultural association, Medeu district of Almaty, by canceling the registration under the Private property Right Act No. 0087581 dated September 19, 2014, invalidating and canceling the registered ownership right of the defendants Baytoleuov Asan Kasenovich and Zhanpeisova Zhanna Lazarevna to the land plot No. 89 in the village of Druzhba, Medeu district of Almaty, on the cancellation of registration with the Department of Justice of Almaty of the purchase agreement- sale dated March 05, 2014 between Kasenov Aslan Serikzhanovich, a private bailiff of the executive district of the Almaty region, and Asan Kasenovich Baytoleuov, an act on the right of private ownership of a land plot in the name of Baytoleuov A.K. dated September 19, 2014. During the trial, it became clear that land plot No. 82 and No. 89 overlap each other, i.e. there are 2 acts on the right of private ownership for one land plot. So..... According to the purchase and sale agreement dated September 26, 2005, Andrey Anatolyevich owns the right of private ownership of a land plot with an area of 0.053 hectares at the address: Almaty region, Talgar district, Koktyubinsky rural district, Druzhba horticultural association, plot No. 82, which previously belonged to Yuri K. Kim.
Statement of claim for the removal of obstacles in the use of land
Also, during the trial in the Medeu District Court, it turned out that for unknown reasons, several plots of land were lost in the Druzhba horticultural association from 2000 to 2005, including: - land plot No. 83 owner - Oleg Leonardovich Kim; - land plot No. 84 owner – Kim Leonard Konstantinovich; - land plot No. 85 owner – ...... V.N. Kim Leonard Konstantinovich explained at the hearing that the specified land plots No. 83 and No. 84, according to the certificate from the NGO "Government for Citizens" (PSC), belong to him and his son, Kim Oleg Leonardovich. Attention is drawn to the fact that land plots were initially allocated in order, and the numbering of land plots was ordered, but today the sequence of numbering of land plots has been disrupted. And in general, the very fact that the land plots have disappeared is puzzling, since this is not some kind of thing that can be stolen or lost, this is real estate, these are land plots, and they cannot disappear by themselves. Therefore, for a full and objective examination of the case, it is necessary to find out when, how and under what circumstances these land plots disappeared, and who should be responsible for the loss of land. On June 23, 2015, the Medeu District Court of Almaty, composed of the presiding judge D.D. Makhmetova. having considered in open court proceedings in the courthouse the civil case on the claim of Asan Kasenovich Baytoleuov against Andrey Anatolyevich Egai and on the counterclaim of Andrey Anatolyevich Egai against Asan Kasenovich Baytoleuov, Zhanna Lazarevna Zhanpeisova, Amangeldy Aktybekovich Tanabaev, Duman Zhenisovich Imashev, the Almaty city branch of the RSE "NPTsem", the Department of Justice of Almaty , to a private bailiff of the executive to Kasenov Aslan Serikzhanovich of Almaty city District, Eurasian Bank Joint Stock Company DECIDED: In satisfying the claims of Baitoleuov Asan Kasenovich against Egai Andrey Anatolyevich for the obligation to remove obstacles to the use of the land, demolish unauthorized buildings, fences, fences on the land located at the address: Almaty, Medeu district, horticultural association Druzhba, plot 89, cadastral number 20-315-075-003, collection of state duty in the amount of 1982 tenge, the removal of obstacles in the use of land – to refuse in full.
To partially satisfy the counterclaims of Egai Andrey Anatolyevich against Baytoleuov Asan Kasenovich, Zhanpesova Zhanna Lazarevna, Tanabaev Amangeldy Aktybekovich, Imashev Duman Zhenisovich, Almaty city branch of RSE NPTsem, Almaty Department of Justice, private bailiff of the executive district of Almaty Kasenov Aslan Serikzhanovich, joint-stock company Eurasian Bank. To invalidate the auctions conducted by the Private bailiff Kasenov A.S. dated March 04, 2014, purchase and sale agreement dated March 05, 2014 between Aslan Kasenov, a private bailiff of the executive district of the Almaty region, acting on the basis of state license No. 605 dated August 27, 2012 and the Order of the Chairman of the Committee for the Execution of Judicial Acts of the Ministry of Justice of the Republic of Kazakhstan No. 136 dated October 21, 2012, hereinafter referred to as the "Organizer Auction", and the buyer Baitoleuov Asan Kasenovich of the seized property of the debtor Imashev D.Zh. in the form of a land plot (cadastral number 03-051-024-514), with an area of 0.0530 hectares at the address: Almaty region, Talgar district, Koktyubinsky rural district, Druzhba horticultural association, plot No. 89, act of private ownership of the land plot issued by the Almaty city branch of the RSE NPTsem for No. 0087581 dated September 19, 2014 in the name of Asan Kasenovich Baytoleuov, to cancel the registration of the act on the right of private property No. 0087581 dated September 19, 2014 in the Department of Justice of Almaty, to cancel the registration of property rights in the Almaty Department of Justice of the purchase and sale agreement dated March 05, 2014 between Kasenov Aslan Serikzhanovich, a private bailiff of the executive district of the Almaty region, and Asan Kasenovich Baytoleuov, for Asan Kasenovich Baytoleuov and Zhanna Lazarevna Zhanpeisova.
In the rest of the counterclaim, Andrey Anatolyevich is asked to refuse. Thus, Imashev D.Zh. retains ownership of a land plot with an area of 0.053 hectares, cadastral number 03-051-024-514, located at: Almaty region, Talgar district, Koktyubinsky rural district, Druzhba horticultural association, plot No. 89 (now Almaty, Medeu district, Druzhba village, plot No. 89), on the basis of a purchase and sale agreement for private ownership of a land plot dated February 02, 2007, concluded between Duman Zhenisovich Imashev (hereinafter referred to as the Plaintiff) and Azimzhan Abdukarimov, acting on behalf of Amangeldy Aktybekovich Tanabaev. There is also a certificate of registered rights to real estate and its technical characteristics, according to which ........ d.Zh. owns a land plot with an area of 0.053 hectares, cadastral number 20-315-075-003, located at: Almaty, Medeu district, Druzhba village, plot No. 89. To date, the Plaintiff, who is rightfully the owner of land plot No. 89, cannot actually own, use and dispose of this land plot, since it is disputed, and the Defendant arbitrarily erected a fence on the land plot, installed a gate and a gate, thereby depriving the Plaintiff of access to the land plot. In accordance with Part 1 of Article 244 of the Civil Code of the Republic of Kazakhstan, unauthorized construction is an apartment building, other structure, structure or other immovable property created on land not formed into land plots owned by the state, on a land plot that does not belong to the person who carried out the construction, as well as created without obtaining permits required in accordance with with the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan.
According to Part 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. According to part 3 of aAccording to Part 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 thng - tll, 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. According to part 3 of art. 244 of the Civil Code of the Republic of Kazakhstan, the right of ownership to244 of the Civil Code of the Republic of Kazakhstan, the right of ownership to an unauthorized building may be recognized by a court for a person who carried out construction on a land plot that does not belong to him, provided that this plot is provided to this person in accordance with the established procedure for the placement of the erected building. The right of ownership to 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. In accordance with Part 1 of Article 164 of the Land Code of the Republic of Kazakhstan, property rights and land use rights are protected in accordance with the procedure provided for by the Civil Code of the Republic of Kazakhstan and other legislative acts of the Republic of Kazakhstan. On April 29, 2019, we sent a letter to Egai Andrey Anatolyevich with a proposal to resolve the current situation in a pre-trial manner by peaceful means, but to date we have not received a response to the letter. Based on the above, I ask the Court:
To declare illegal one of the following acts on the right of private property:to the land plot located at the address: Almaty, Medeu district, horticultural association "Druzhba", plot No. 82;
to the land plot located at the address: Almaty, Medeu district, horticultural association "Druzhba", plot No. 89.
If the act on the right of private ownership of a land plot located at the address: Almaty, Medeu district, Druzhba horticultural association, plot No.If the act on the right of private ownership of a land plot located at the address: Almaty, Medeu district, Druzhba horticultural association, plot No. 82 is recognized as illegal, oblige ..... Andrey Anatolyevich to remove obstacles to the use of ..... Duman Zhenisovich land plot with an area of 0.053 hectares, cadastral number 20-315-075......, located a
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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