There Were No Legal Grounds for Recognizing the Plaintiff as Being in Need of Housing and for Granting Housing Payments

No. 6001-25-00-6ап/222 dated May 27, 2025

Plaintiff: N.A.

Defendant: State Institution “Police Department of the Police Department of the Region of the Ministry of Internal Affairs of the Republic of Kazakhstan” (hereinafter – the Department)

Subject matter of the dispute: recognition as unlawful and annulment of the decision of the Housing Commission refusing to register the Plaintiff as a person in need of housing and to grant housing payments; compelling the Defendant to adopt a favorable administrative act on registering the Plaintiff as a person in need of housing and granting housing payments

Review upon the cassation appeal of the Defendant

FACTUAL BACKGROUND:

N.A. has been an employee of the internal affairs bodies since 2005 and has held the position of assistant to the duty officer of the Reception and Distribution Center of the Police Department since November 2016.

According to the bank loan agreement concluded between Bank JSC and the Plaintiff’s spouse on February 28, 2022, the latter, with the consent of her spouse, purchased immovable property, namely an apartment, under a sale and purchase agreement dated February 25, 2022, using a mortgage loan. Under the said bank loan agreement, according to the application for accession, the Plaintiff is a co-borrower.

The bank loan was granted for a period of 72 months, i.e. until September 5, 2029.

In performance of the mortgage loan obligations, the said immovable property was pledged to the Bank as collateral.

According to the certificate on the absence (presence) of immovable property, the apartment is registered in the Plaintiff’s name as jointly owned property.

In March 2024, the Plaintiff applied to the Police Department with a report requesting that housing payments be granted to him.

By the decision of the Defendant’s Housing Commission dated April 30, 2024, N.A. was refused recognition as a person in need of housing and the granting of housing payments.

The grounds for refusing to recognize the Plaintiff as a person in need of housing and to grant housing payments were the Plaintiff’s alienation of an apartment fit for habitation under a sale and purchase agreement dated February 8, 2022.

Judicial Acts:

First instance: the claim was granted.

The decision of the Housing Commission of the Police Department dated April 30, 2024, insofar as it refused to recognize N.A. as a person in need of housing and to grant housing payments, was declared unlawful and annulled.

The Police Department was ordered, within one month from the date the court decision entered into legal force, to adopt a favorable administrative act recognizing N.A. as a person in need of housing and to grant him housing payments from the date of submission of the report.

The issue of court costs was resolved.

Appeal: the decision of the court of first instance was upheld without change.

Cassation: the judicial acts in the case were annulled, and a new decision was rendered refusing to grant the claim.

Conclusions:

Pursuant to subparagraph 5) of paragraph 3 of Article 101-3 of the Law of the Republic of Kazakhstan “On Housing Relations” (hereinafter – the Law), employees of the internal affairs bodies shall be refused recognition as persons in need of housing if they or their spouses, within the last five years, have alienated housing fit for habitation in the locality where they serve, except where their spouses owned housing before entering into marriage. In this case, the alienation of a share of less than fifty percent in the housing shall not be taken into account.

Pursuant to paragraph 1 of Article 101-11 of the Law, the exercise of the right to housing by employees of the internal affairs bodies shall be carried out from the date they are recognized as being in need of housing in accordance with the procedure established by this Chapter, by providing official housing or transferring housing payments to the personal special account of employees falling within the category of positions of employees of the internal affairs bodies entitled to receive housing payments, unless otherwise provided by the second and third parts of this paragraph.

It follows from the above provisions of the Law that the exercise of the right to housing by employees of the internal affairs bodies is possible exclusively subject to their recognition as persons in need of housing. Accordingly, the right to receive housing payments arises from the date such employees are recognized as being in need of housing.

The case materials establish that on February 8, 2022, the Plaintiff alienated housing fit for habitation under a sale and purchase agreement; accordingly, the five-year period required for recognizing the Plaintiff as a person in need of housing had not elapsed from the date of such alienation.

The conclusions of the lower courts that the existing housing did not comply with the established standards of usable floor area per person for the Plaintiff’s family and that he was forced to purchase new housing with a mortgage loan in order to satisfy the need for more space are considered unfounded by the judicial panel.

In the present case, paragraph 1 of Article 75 of the Law, which provides that housing from the state housing fund or housing rented by a local executive body in the private housing fund shall be provided at the rate of not less than fifteen square meters and not more than eighteen square meters of usable floor area per person, is not applicable, since the Plaintiff did not receive the apartment from the state housing fund; the said apartment was owned by the Plaintiff, and therefore the living area of the apartment was chosen by the Plaintiff himself.

Thus, there are no legal grounds for recognizing the Plaintiff as being in need of housing and for granting housing payments; accordingly, the claims are unfounded.

The incorrect interpretation and application by the courts of the substantive law, as well as the inconsistency of the conclusions of the courts set out in the judicial acts with the circumstances of the case, resulted in an unfounded decision in the dispute.

Under these circumstances, the judicial panel concluded that there were no grounds for granting the claims.

Given that the case did not require the collection or additional verification of evidence, the judicial panel considered it necessary to annul the contested judicial acts and render a new decision refusing the claim in full. 

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