The refusal to produce an identification document for a land plot is unlawful, expressed in the Actions of the state institution "Department of Land Relations"

D. appealed to the court with a statement to the RSE for the PCV "NPTS of the Land Cadastre", the state institution (hereinafter – GU) "Department of Land Relations of the city of Taldykorgan", to third parties who do not make independent claims - the minor Zh., with the legal representative S., A., M. and the State Institution "Department of Architecture and Urban Planning of the city of Taldykorgan" on recognizing the actions of the RSE at the NPTS of the Land Cadastre to refuse to produce an identification document for the land plot of the peasant farm "B" (hereinafter – KH) located in the area of branch No. 1 of the city of Taldykorgan, Almaty region, as illegal, assigning duties to the RSE at the RSENPTS of the land cadastre" to produce an identification document for the KH "B" land plot. Subsequently, the applicant, in accordance with Article 49 of the CPC, increased the stated claims and asked the court to recover compensation for moral damage in the amount of 50,000 tenge from the RSE at the NPC of the Land Cadastre. By the decision of the Taldykorgan City Court of January 28, 2013, D.'s statement partially satisfied. The actions of the RSE at the NPC of the Land Cadastre to refuse to issue an identification document for a land plot of 154.0 hectares of farm "B" were recognized as illegal.

The RSE at the NPC of the Land Cadastre is responsible for producing an identification document for the KH "B" land plot with an area of 154.0 hectares. The rest of the claims were denied. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated May 02, 2013, the court's decision was changed. The actions of the RSE at the NPC of the Land Cadastre to refuse to produce an identification document for the KH "B" land plot were recognized as illegal. The RSE at the NPC of the Land Cadastre is responsible, on the basis of current legislation, to eliminate violations related to the production of an identification document. The rest of the solution remains unchanged. By the decision of the Cassation Judicial Board of the Almaty Regional Court dated July 31, 2013, the decision of the appellate judicial board regarding the satisfaction of the stated requirements for the recognition of illegal actions of the RSE at the NPC of the Land Cadastre by refusing to produce an identification document for the KH "B" land plot and assigning duties to the RSE at the NPC of the Land Cadastre on the basis of to eliminate violations of the current legislation, related to the production of the identification document is cancelled with the decision to reject the application in this part. The rest of the judicial act remains unchanged.

In the petition of D. She asked to cancel the decision of the cassation judicial board as illegal and unfounded, with a new decision on the satisfaction of the application in full, indicating that the judicial board violated the norms of substantive and procedural law. In a response to the petition, the respondent of the RSE on the PCV "NPTS of the Land Cadastre" asked the contested judicial act to remain unchanged and the petition to be dismissed. The Supervisory Judicial Board of the Supreme Court has changed the decision of the Cassation Judicial Board of the Almaty Regional Court. Regarding the refusal to satisfy the application for recognition of the illegal actions of the RSE at the NPC of the Land Cadastre to refuse to produce an identification document for the KH "B" land plot and the assignment of the obligation to the RSE at the NPC of the Land Cadastre on the basis of current legislation to eliminate violations related to the production of the identification document was canceled. The decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court was upheld on the following grounds. As can be seen from the case file, the land plot with an area of 154.0 hectares was provided for the organization and management of peasant farming on the basis of the resolution of the head of the Taldykorgan city administration dated December 05, 1994, the decision of the akim of Taldykorgan dated May 17, 1996, October 10, 1998, the resolution of the Akimat dated June 08, 2005. He acquired this land plot under a contract of sale from state to private ownership.

The peasant farm previously consisted of one member, J., who is the head of this farm, based on personal entrepreneurship. These circumstances are not disputed by the parties to the case. On January 01, 2011, the head of KH. Zh. died. Based on the certificate of inheritance right under the law of October 17, 2011, issued by notary K., the inheritance in the form of KH "B" property, consisting of a residential building, a warehouse, a veterinary clinic, a cowshed, a gatehouse, a pigsty, a warehouse, a barn, a pumping station, a gatehouse with a land plot measuring 154.0 hectares with a target The following persons were appointed to manage the household, cadastral number 03-268-949-216, located at the above address: spouse D. - 2/5 of the share; on the basis of the certificate of inheritance right under the law of October 25, 2011, issued by notary K., minor daughter U. - 1/5 of the share; daughters: With and Y. for 1/5 of the share. The inheritance certificate was legally obtained by J. and A., but the other heirs did not receive such a certificate. Based on the application of the Director, DGP "Almaty NPTsem" measured land plots in an area with an area of 0.6983 hectares and prepared land management projects for further registration of title documents, confirmed by a written response from DGP "Almaty NPTsem" dated March 13, 2012. In turn, D. I applied to the RSE at the NPC of the Land Cadastre with a request to reissue the identification document for the land plot provided for agricultural management.

The refusal to produce an identification document for a land plot is unlawful, expressed in the Actions of the state institution "Department of Land Relations"

However, according to the response dated August 02, 2012 No. 01-34/100 of the Almaty NPCEM, D.'s application was refused on the grounds that it was necessary to allocate the inherited property in kind and apply to the State Administration. It can be seen from the case materials that the ADGP "Almaty NPTsem", whose action was appealed to the court by an application, was transformed into the RSE at the NPC of the Land Cadastre. In this regard, the supervisory judicial board of the Supreme Court concluded that the actions of the named body, expressed in the refusal to produce an identification document for the specified land plot, are unlawful. In accordance with paragraph 3 of Article 51 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Code), when making a transaction with a part of a divisible land plot, this part must be pre-allocated into an independent land plot in accordance with the established procedure.

It should be noted that in this case we are not talking about making a transaction, but the subject of the dispute is the actions of the authorities that were refused to issue the relevant documents for registration of inheritance rights. Paragraph 1 of article 52 of the said Code contains a legal provision stating that ownership of a building (structure) entails, in accordance with the procedure established by law, ownership of a land plot occupied by said buildings (structures), except as provided for in this Code. According to Article 1082 of the Civil Code, in the event of the death of a member of a peasant or farm, the inheritance is opened according to the general rules. Heirs have the right to receive monetary compensation commensurate with their share in the common ownership of this property. In paragraph 1 of Article 20 of the Law "On a peasant or farm" dated March 31, 1998 No. 214-1 (with amendments and additions as of July 03, 2013), it is stipulated that the activity of a peasant or farm is terminated if there is not a single member of the farm, heir or other person willing to continue the activity. farms, as well as in cases of bankruptcy and termination of the right of private ownership of a land plot or land use rights.    Such clarifications are contained in paragraph 29 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of inheritance legislation by courts" No. 5 dated June 29, 2009. As noted above, two of A.'s heirs are citizens of the Russian Federation who cannot own agricultural land (article 87 of the Land Code). In addition, these heirs did not apply to the relevant authorities for a certificate of inheritance under the law and challenged in court the recognition of their ownership rights to a half share of the inherited property. The decision of the Taldykorgan City Court of February 07, 2013, which entered into force, refused to satisfy the application of these heirs.

The parties to the case did not provide the court with evidence indicating the termination of the activities of the peasant farm, and D. indicated in her statement that she intended to continue the activities of the peasant farm, but could not obtain identification documents for the land plot of 154.0 hectares belonging to KH "B". In accordance with paragraph 6 of Article 1 of the Law "On State Registration of Rights to Immovable Property" dated July 26, 2007 No. 310, state registration of rights to immovable property is a mandatory procedure for state recognition and confirmation of the emergence, modification and termination of rights (encumbrances of rights) to immovable property and other objects of state registration in the legal cadastre in in accordance with the procedure and time limits established by this law and other laws.

 

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