The statute of limitations as a way to acquire ownership rights
The statute of limitations as a way of acquiring ownership by a person who owns an item has existed since the time of Roman law. According to the Laws of the XII Tables, the statute of limitations for land plots was 2 years, for other items - one year, while the acquisition of stolen items was excluded. Subsequently, the law established the conditions for the acquisition of ownership rights based on the statute of limitations. For this, it was necessary to actually and conscientiously own the thing for a certain, longer period of time. During the Soviet period, there was no statute of limitations in the civil law of the Kazakh SSR, since there was a presumption of state ownership in the legislation. For the first time, the institution of the statute of limitations was introduced with the adoption of the Law "On Property in the Republic of Kazakhstan" dated December 15, 1990, as amended on April 9, 1993. According to paragraph 3 of Article 6 of the said law, a citizen or a legal entity who is not the owner of property, but who has owned real estate in good faith, openly and continuously as his own for at least fifteen years or other property for at least five years, acquires ownership of this property (statute of limitations). Then the rule on the statute of limitations was fixed in Article 240 of the General Part of the Civil Code.
The statute of limitations as a way to acquire ownership rights
It should be noted that the current legislation is being consistently amended in the interests of the long-term owners. Thus, in the original wording of Article 240 of the Civil Code, in paragraphs 4 and 5, it was determined that the limitation period for property held by a person from whose possession it could be claimed in accordance with Articles 260-263, 265 of this Code begins no earlier than the expiration of the limitation period for the relevant requirements. If a person is denied recognition of ownership rights by a court, the person who owns the property becomes the owner. From the previous wording of the specified paragraphs of Article 240 of the Civil Code, it followed that the prescription owner could declare his rights to property only if other persons could not claim it, that is, the prescription was regarded as a derivative, due to the absence of the right of other persons, the basis for the emergence of ownership rights. The Law of the Republic of Kazakhstan dated March 25, 2011 No. 421-IV "On Amendments and additions to certain legislative acts of the Republic of Kazakhstan on improving civil legislation" deleted paragraph 5 of Article 240 of the Civil Code, and paragraph 4 is worded as follows: "The limitation period begins from the moment of taking possession of the thing." Then, by the Law of the Republic of Kazakhstan dated July 22, 2011 No. 479-IV "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on housing relations", the limitation period for real estate was reduced from 15 to 7 years. These changes mean that the statute of limitations is being absorbed by the statute of limitations, so it is important to have a seven-year statute of limitations for immovable property to resolve the dispute. The duration of this period is sufficient for the owner to claim protection of his rights. Despite these changes in the calculation of the statute of limitations, the decision of the Judicial Board for Civil Cases of the Aktobe Regional Court dated December 13, 2017 in the case of Levina L.I.'s claim states that the period of the statute of limitations begins no earlier than the expiration of the statute of limitations, that is, the claim for recognition of ownership rights by virtue of the statute of limitations may be declared for immovable property – after 10 years, for movable property – 8 years. Also, the Law of the Republic of Kazakhstan dated March 1, 2011 No. 414-IV "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on State property" significantly changed the wording of paragraph 3 of Article 242 of the Civil Code. According to the previous wording of paragraph 3 of Article 242 of the Civil Code, an ownerless immovable thing that is not recognized by a court decision as having entered communal ownership may be re-taken into possession, use and disposal by the owner who left it, or acquired by virtue of the statute of limitations (Article 240 of this Code). That is, the long-standing owner could claim an ownerless thing only after the court refused to recognize this thing that had entered communal ownership.
The statute of limitations as a way to acquire ownership rights
The new version of paragraph 3 of Article 242 of the Civil Code establishes that ownerless immovable property owned by citizens or non-governmental legal entities that own such property as their own cannot be registered and transferred to communal ownership. A similar rule is established in paragraph 2 of Article 23 of the Law "On State Property". Thus, the priority of the interests of the long-standing owner over the state in relation to the ownerless thing is legally established. In specific cases, the courts, justifying their conclusions about good faith, indicate that in order to acquire ownership rights based on the statute of limitations, it is necessary that a person (citizen or legal entity) did not know and should not have known about his lack of ownership of the thing. However, this understanding of good faith is controversial, since by virtue of the literal content of paragraph 1 of Article 240 of the Civil Code, the prescription owner must understand that he is not the owner of the thing. The provision "possession as one's own" contained in this norm characterizes the subjective attitude of the owner to the thing, to its possession, and also defines the external signs of the very fact of possession. Ownership is one of the essential conditions for the acquisition of ownership rights under the statute of limitations, and ownership should be based on fact, not law.
Possession based on law is not counted against the statute of limitations. This is stipulated in paragraph 13 of the regulatory decree of April 20, 2006 No. 3 "On the practice of judicial review of disputes on the right to housing abandoned by the owner", according to which the time when the home was owned on the basis of contractual obligations (lease, storage, gratuitous use, etc.) or the dwelling was not counted in the statute of limitations. it is fixed on the right of economic management or operational management. If ownership is based on law, then the legislative protection of the owner's rights is regulated by Article 265 of the Civil Code, according to which the rights of a person who, although not the owner, owns property on the right of economic management, operational management, permanent land use, or on another basis provided for by legislative acts or a contract are subject to protection. This person has the right to defend his possession also against the owner.
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