Unauthorized construction is an apartment building, other building, building or other immovable property.

In order to become an object of relations regulated by Article 244 of the Civil Code, a building made by a person must be unauthorized. Unauthorized construction is an apartment building, other building, structure, or other immovable property created by: 1) on land that has not been converted into land plots owned by the state; 2) on a land plot that does not belong to the person who carried out the construction; 3) without obtaining the permits required in accordance 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 (paragraph 1 of Article 244 of the Civil Code). It follows from paragraph 2 of Article 244 of the Civil Code that the object of the relationship is an unauthorized building. The subject is a "person", from this it follows that the subject can be not only a citizen. Further, paragraph 2 provides for what consequences may occur in the case of unauthorized construction.: 1) A person is required to demolish an unauthorized building. The deadline for demolition has not been set by the legislator. If the person who carried out the unauthorized construction does not fulfill this duty, Article 244 of the Civil Code alternatively provides for the possibility of demolishing the unauthorized building at the expense of the person who carried out the construction.

The owner of the land plot has the right to decide on the use of an alternative method of demolishing an unauthorized building, taking into account the proportionality of the violation. 2) A person who has carried out an unauthorized construction does not acquire ownership rights to it. This conclusion follows from the general rule of Article 235 of the Civil Code, which requires that in order to acquire ownership of a new thing, the law must be observed when it is created. Since the person does not have ownership rights to this building, he does not own the rights that constitute the content of the ownership right (paragraph 3, Article 188 of the Civil Code). The legislator included in paragraph 2 of Article 244 of the Civil Code a provision stating that a person does not have the right to dispose of a building - to sell, donate, lease, or make other transactions. This means that, without being the owner, this person also has no right to own and use an unauthorized building. Paragraph 2 of Article 244 of the Civil Code does not address the issue of ownership of materials used in the construction of unauthorized buildings. This issue is resolved by the general rules of the Civil Code on property rights. The person who created the unauthorized building and carried out its demolition retains ownership of the materials used. In accordance with the provisions of paragraph 4 of Article 236 of the Civil Code, until the state registration of the right to newly created immovable property, the rules on ownership of materials and other property from which the immovable property is created apply to the property. If the demolition is carried out by another person at his expense, the law allows for the seizure of materials from someone else's illegal possession (Article 260 of the Civil Code). Further, in paragraph 3 of Article 244 of the Civil Code, the legislator provided for cases of acquisition of ownership of an unauthorized building. An analysis of this rule allows us to conclude that an unauthorized building should be erected on a plot of land that does not belong to the person who erected this building. However, the cases covered by paragraph 3 of Article 244 of the Civil Code have differences, which are as follows: - ownership of an unauthorized building may be recognized by a court for the person who carried out the 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 (part 1 of paragraph 3 articles 244 of the Civil Code); - the developer's ownership right to unauthorized construction on a land plot that does not belong to him, with the exception of land owned by the state, may be recognized by a court with the consent of the owner of the land plot with payment of compensation to the latter, provided that the construction meets the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities (part 2 of paragraph 3 of Article 244 of the Civil Code); - the right of ownership to an unauthorized building may also be recognized by the court for the person in whose lawful use the land plot where the construction was carried out is located. In this case, the person who has recognized ownership of the building shall reimburse the person who carried it out for the construction costs in the amount determined by the court (Part 3 of paragraph 3 of Article 244 of the Civil Code). This paragraph contains one requirement common to all: - the ownership right 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 or would endanger the life and health of citizens (Part 4 of paragraph 3 of Article 244 of the Civil Code). Article 244 of the Civil Code establishes that in all cases where the acquisition of ownership of an unauthorized building is allowed, such acquisition is not mandatory. The meaning of the norm is that even the court does not in all cases have the right to grant ownership to either the person who built on a land plot that does not belong to him, which is at the disposal of the bodies regulating land relations, or the owner (land use entity) on whose site the unauthorized building was erected. The corresponding reservation is contained in part 4 of paragraph 3 of Article 244 of the Civil Code. It obliges the court in certain cases to refuse to recognize ownership of an unauthorized building. But such a refusal should be followed in cases where really important interests are affected. The article stipulates that the preservation of buildings should not endanger the health and life of citizens, as well as violate the rights and legally protected interests of other citizens. This requirement has an independent meaning.

Therefore, the court has the right to apply it in cases where, for example, a local executive body has provided a land plot to a person for unauthorized construction. Thus, the analysis of paragraph 3 of Article 244 of the Civil Code allows us to conclude that: - the right to unauthorized construction can be established if an unauthorized building is erected on a plot of land that does not belong to the person who erected this building.; - the right to unauthorized construction cannot be recognized for a person in whose lawful use the land plot where the construction was carried out is located, since the legislator has provided for a different procedure for registration of such rights. This order will be described below. Paragraph 4 of Article 244 of the Civil Code provides that, taking into account socio-economic expediency, an unauthorized building erected by a person on land plots (land not formed into land plots) owned by the state and not in land use is transferred to communal ownership with reimbursement of construction costs in the amount determined by the court. When unauthorized construction is carried out on a land plot used by state land users, taking into account socio-economic expediency, the unauthorized building is transferred to communal ownership with reimbursement of construction costs in the amount determined by the court from budgetary funds. Thus, in order not to encourage unauthorized construction and at the same time ensure the safety of funds for its creation, the legislator provided for its transfer to the ownership of the person in whose lawful use the land plot where the construction was carried out is located, and in exceptional cases, taking into account socio-economic expediency, to communal ownership. It should be noted that in practice, the norm of paragraph 4 of Article 244 of the Civil Code does not work, no such disputes have been identified in judicial practice, perhaps this is due to the historical conditions under which this norm was put into effect (paragraph 2 of Article 6 of the Civil Code). According to Part 1 of paragraph 3 of Article 244 of the Civil Code, ownership of an unauthorized building may be recognized by a court for a person who built 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. This provision of the law applies when an unauthorized building is erected on land owned by the state that has not been converted into land plots and without obtaining permits required in accordance 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. In accordance with articles 17, 18, 19, and 44 of the Land Code, the provision of land plots for private ownership and land use falls within the competence of the district (except for urban areas) executive body, the local executive body of the city of regional significance, akims of the city of regional significance, settlement, aul (village), and aul (rural) districts.

Unauthorized construction is an apartment building, other building, building or other immovable property.

Paragraph 11.12 of the regulatory resolution "On certain issues of dispute resolution related to the protection of ownership of housing" clarifies that when considering a claim for recognition of ownership of a residential building arbitrarily erected on a plot of land not allocated for these purposes, it can be satisfied only on condition that the land will be provided to the plaintiff in accordance with the procedure established by law. Satisfaction of such a claim is possible provided that the preservation of the building does not violate the legitimate interests of others or endanger the life and health of citizens. These conditions must be confirmed by the authorities authorized to carry out state acceptance of completed construction projects. The above-mentioned norms of the law mean that an unauthorized building must be erected on land owned by the state, that is, the corresponding land plot does not belong to anyone on the right of private ownership and is not allocated to anyone for use. Part 1 of paragraph 3 of Article 244 of the Civil Code establishes that in such cases the right to unauthorized construction is established by a court decision. The right to file a claim for recognition of the right to unauthorized construction belongs to the person who carried out the unauthorized construction. The existence of the right to file a claim in court does not depend on the existence of a decision of the relevant authority on the provision of land. Such a person has the right to first apply to the bodies regulating land relations with a request for the provision of a plot and only then apply to the court. But it has the right to immediately file a lawsuit in court. The defendant in such a dispute is the local executive body. It should be noted that for this category of disputes, the stage of preparing the case for trial is important (Chapter 16 of the CPC). At the preparatory stage, the court takes measures to clarify the issue of which decision regarding the land plot on which the unauthorized building will be built will be made by the local executive body. The court invites the defendant to submit the relevant evidence in writing. Such a document is signed by an authorized person, that is, by the akim of the relevant administrative-territorial unit. Judicial practice shows that one opinion (position) expressed by the akim's representative at a court hearing on this issue is not enough. The court must have reliable information about the future fate of the land plot when considering such a category of disputes, which is required by the norm of Article 244 of the Civil Code. Therefore, the relevant evidence should be in the case file. The need to provide such evidence is to ensure that there are no problems with its enforcement in the future after the court decision enters into force. Article 272 of the CPC does not contain grounds for suspending the proceedings in case the authorized body is given time to make a decision on the provision of a land plot, therefore the court is obliged to consider the case taking into account the evidence provided. Further, the court determines whether the preservation of the building will not entail a violation of the rights and legally protected interests of others, and whether threats to the life and health of citizens will be created (part 4 of paragraph 3 of Article 244 of the CPC). Therefore, third parties may participate in this category of disputes, which in court give an opinion on the compliance of the building with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities and other legislation of the Republic of Kazakhstan. The court makes a decision only after clarifying the specified circumstances and providing the necessary evidence. From the moment the person who carried out the unauthorized construction applies to the court with the specified claim, the rule contained in Part 2 of paragraph 2 of Article 244 of the Civil Code, providing for the demolition of an unauthorized building, is suspended. From the moment of entry into force of the court's decision on the refusal to recognize the right of ownership, the said rule resumes its effect.

The conducted generalization showed that the courts, as a rule, make legitimate and reasonable decisions on this category of disputes. By the resolution of the Supreme Court of the Republic of Kazakhstan dated December 21, 2017, the decision of the Almaty District Court of Astana dated May 31, 2016, and the decision of the Judicial Board for Civil Cases of the Astana City Court dated September 13, 2016, which dismissed O.'s claim to the Akimat of Astana for recognition of ownership of an unauthorized building, remained unchanged. The courts motivated the refusal by the fact that, according to paragraph 3 of Article 244 of the Civil Code, the right of ownership to an unauthorized building may be recognized by the court for the person who carried out the construction on a land plot not belonging to him, provided that this plot is provided to this person in accordance with the established procedure for the placement of the erected building. without the permission of the authorized body, an unauthorized structure was erected on a land plot that did not belong to him, and by the decree of the akim of Astana dated February 29, 2016, the provision of a land plot was refused, so the court came to a reasonable conclusion to dismiss the claim. K. appealed to the court with a claim to the akimat of the Tselinograd district for recognition of ownership of the unauthorized building. The court found that on the land plot owned by the state that was not provided to the plaintiff for the construction of a residential building, he had arbitrarily erected a house that meets the requirements of building codes and regulations. The land plot does not exceed the red line, does not violate the rights of third parties, and corresponds to the general plan of the settlement. At the hearing, the akim of the Koyandinsky rural district expressed the opinion that they would provide the land plot to the plaintiff. There is also a written response from the akim of the same content in the case. By the decision of the Tselinograd District Court of the Akmola region dated September 19, 2018, the claim was filed. I am satisfied with the recognition of ownership of an unauthorized building. It also seems correct to consider a dispute that has been denied recognition of ownership of an unauthorized building, since the building is located on a plot of land belonging to the state forest fund, and the plaintiff's land was under the right of long-term land use. By the decision of the Ridder City Court of the East Kazakhstan region dated May 16, 2018, which was left unchanged by the decision of the Judicial Board for Civil Cases of the East Kazakhstan Regional Court dated August 16, 2018, R.'s claim to the mayor of Ridder city for recognition of ownership of an unauthorized building was denied. The court found that the land plot was provided to the plaintiff on the right of long-term forest use.

The refusal of the claim is motivated by the fact that the land plot from the lands of the forest fund cannot be provided in accordance with the established procedure. for the placement of the erected building, since the land plot of the forest fund belongs to the objects of state ownership and is in republican ownership. The plaintiff, in accordance with the long-term forest management agreement, has the right to erect buildings only for the duration of the agreement. At the same time, there are disputes when the court makes a decision that does not comply with the requirements of part 1 of paragraph 3 of Article 244 of the Civil Code. By the resolution of the Supreme Court of the Republic of Kazakhstan dated June 5, 2019, the resolution of the Judicial Board for Civil Cases of the Astana City Court dated October 23, 2018 in the case of the claim of Zh. to the Akimat of Astana city on the recognition of ownership of an unauthorized building. By the decision of the Saryarkinsky District Court of Astana dated August 9, 2018, the claim was denied, the appellate instance agreed with this decision. The Court of cassation considered the court's conclusions premature, since the courts had not established on which land plot the unauthorized buildings had been erected, or whether this land plot could be provided to the developer in accordance with the established procedure. The court of first instance conducted formal preparations in the case, and did not clarify this issue at the court session. The specified omission was not eliminated by the appellate instance, which was the basis for canceling the decision and sending the case for a new hearing. From the meaning of part 1 of paragraph 3 of Article 244 of the Civil Code, it follows that the lack of consent of the authorized body to grant the land to the plaintiff in the future is the basis for refusing to satisfy the claim for recognition of ownership of an unauthorized building. Despite the direct indication of the law, the courts do not always comply with this rule, they make decisions on which the opinion of the local executive body on the provision of land to the plaintiff is not clarified in the future, there is no such evidence in the case. By the decision of the Saryarkinsky District Court of Astana dated October 5, 2018, left unchanged by the appellate instance, A.'s claim to the Akimat of Astana for recognition of ownership of an unauthorized building was denied. The courts motivated the refusal of the claim by the fact that, by virtue of Article 72 of the CPC, A., in support of her claims, did not provide the court with evidence that the land plot on which the unauthorized construction was carried out would be provided to her by an authorized body and that the structure complies with urban planning and building regulations. The courts did not accept as evidence a letter from the Department of Architecture and Urban Planning of Astana dated June 21, 2018, indicating that registration of the right to a land plot is possible after the facility is put into operation. It was established that the erected structure does not comply with the requirements of the legislation, the plaintiff, in violation of the requirements of article 75 of the Law on Architecture, did not comply with the procedure for accepting the built facility into operation, therefore there were no legal grounds for satisfying the claim. In this case, the court made the correct decision on the merits, but it should be noted that in order to make an objective decision, the court in the course of preparation should have found out the opinion of the akim regarding the provision of a land plot to the plaintiff in the future and oblige the akim to provide such evidence, rather than impose this duty on the plaintiff.

By the decision of the Semey City Court of the East Kazakhstan region dated June 5, 2019, left unchanged by the appellate instance, S.'s claim to the mayor of Semey for recognition of ownership of an unauthorized building was satisfied. During the consideration of the case, Akim, as the head of the executive body, did not appear in court, did not present to the court a document regarding the provision of land to the plaintiff in the future. The court motivated the decision by the fact that the unauthorized building was erected on a land plot owned by the state, but the absence of claims by authorized bodies against unauthorized buildings indicates that they will not pose a threat to the life and health of citizens. Referring to subparagraph 6) of paragraph 1 of Article 74 of the Law on Architecture, the court concluded that the person who carried out the unauthorized construction bears full responsibility for the safety and proper quality of the unauthorized construction during its operation. As mentioned above, the law obliges to find out the opinion of the local executive body in this category of cases. The peculiarity of this category of cases is that they are similar in their characteristics to the category of cases that are considered in the order of special claim proceedings, since the dispute arises from public law relations. Therefore, if the defendant (akim) does not appear in court, the court may recognize the appearance of the said person in the court session as mandatory, postponing the trial and re-summoning the person, applying the analogy of the law (part 2 of Article 296 of the CPC). Moreover, these court actions will comply with paragraph 3 of article 18 of the Constitution, which stipulates that State bodies, public associations, officials and the media must ensure that every citizen has the opportunity to familiarize himself with documents, decisions and sources of information affecting his rights and interests. In the event that a representative of the local executive body does not appear in court, does not provide the necessary documents, the court is obliged to respond by issuing private rulings to the superior akim. The generalization showed that preventive work in this direction is not carried out by the courts. By the decision of the Alakolsky District Court of the Almaty region dated December 4, 2018, T.'s claim to the State Institution "Akim's Office of the Usharalsky city district" on the ownership of an unauthorized building was satisfied, it was established that the unauthorized building was erected on a land plot that does not belong to the plaintiff. The claim was filed against the State Institution "Akim's Office of the Usharalsky city district", that is, the defendant is improper.

Unauthorized construction is an apartment building, other building, building or other immovable property.

During the preparation of the case, the court did not explain to the plaintiff his right to replace the improper defendant with the proper one. In the case, there is a review by the State Institution "Akim's Office of the U. city district", signed by K., acting on the basis of a power of attorney, in which he expressed the opinion that he did not object to the satisfaction of the claim, that is, in fact, recognized the claim. The representative did not participate in the court session, filed an application for consideration of the case in his absence. It follows from the meaning of part 2 of Article 48 of the CPC that the court does not accept the recognition of a claim by the defendant if these actions contradict the law or violate someone's rights, freedoms and legitimate interests. The court ruled to satisfy the claim, the opinion of the authorized body, which is the akim, remained unclear, which is unacceptable when considering this category of disputes, since undesirable consequences may occur for the plaintiff in the form of refusal by the authorized body to allot the land and the decision will remain unfulfilled. The court's acceptance of the defendant's claim for recognition of ownership of an unauthorized building without establishing the circumstances under which, by virtue of part 1 of paragraph 3 of Article 244 of the Civil Code, the claim may be satisfied is a violation of substantive and procedural law. Therefore, the courts must strictly comply with the requirements of parts 1, 4, paragraph 3 of Article 244 of the Civil Code and take the necessary measures to correctly identify and clarify the range of circumstances relevant to the case, to consider the disputes that have arisen when the defendants appear. By virtue of Part 2 of paragraph 3 of Article 244 of the Civil Code, the developer's ownership right to unauthorized construction on a land plot that does not belong to him, with the exception of land owned by the state, may be recognized by a court with the consent of the owner of the land plot and payment of compensation to the latter, provided that the construction meets the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities. This means that the unauthorized structure was erected on land plots owned by a person on the right of ownership or permanent use of the land plot, and the unauthorized building was erected by a developer (a third party) who does not have documents for the land where he built (seizure of the land plot). Part 2 of paragraph 3 of Article 244 of the Civil Code establishes that in such cases the right to unauthorized construction is established by a court decision. The right to file a claim for recognition of the right to unauthorized construction belongs to the person who carried out the unauthorized construction (developer). The defendants are the owner of the land plot and the akim of the relevant administrative-territorial unit, who heads the local executive body. In this case, the court is obliged to: - exclude the ownership of the land by the state; - find out the opinion of the owner of the land plot, whether he agrees with the claim (it is necessary to obtain his written consent). If the owner of the land plot does not object to the claim, the court has the right to make a decision to satisfy the claim if the following conditions are met: - the developer pays compensation to the owner of the land plot for the land plot; - unauthorized construction must comply with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities; - the construction does not entail violation of the rights and legally protected interests of other persons, does not pose a threat to the life and health of citizens. The generalization showed that such disputes were not considered by the courts of the republic. The right of ownership to an unauthorized building may also be recognized by a court for the person in whose lawful use the land plot where the construction was carried out is located. In this case, the person who has recognized ownership of the building shall reimburse the person who carried it out for the construction costs in the amount determined by the court (Part 3 of paragraph 3 of Article 244 of the Civil Code).

An analysis of this provision has shown that the law allows for the recognition of ownership of an unauthorized building, provided that such a claim is filed by the person who owns the land by right of ownership and or by right of permanent land use. Under these conditions, the ownership right is also established by a court decision. In this case, the acquisition of ownership rights by the person (developer) who carried out the unauthorized construction is not allowed. Article 244 of the Civil Code grants such a right exclusively to a person who has the right of ownership or the right of permanent land use, on which an unauthorized building has been erected. From the moment the relevant case is initiated, Part 2 of paragraph 2 of Article 244 of the Civil Code, requiring the demolition of an unauthorized building, is terminated. Moreover, a person who carried out an unauthorized construction, without being its owner, does not have the right to dispose of it by demolishing it. From the moment of entry into force of the decision on refusal to recognize the right of ownership, the norm on the obligation of demolition resumes its effect. A person (developer) who has carried out construction on a land plot that does not belong to him by right of ownership or land use has the right to compensation from the owner of the land plot for construction costs. The amount of compensation is determined by the court. However, the latter rule does not prevent the parties from independently agreeing on the amount of compensation. Paragraph 13 of the regulatory resolution "On certain issues of dispute resolution related to the protection of the right of ownership of a dwelling" clarifies that when recognizing ownership of a residential building for a person in whose lawful use the land plot where the unauthorized building is located is located, the court, if there is an appropriate requirement, reimburses the person who carried out the construction for the construction costs. The generalization does not establish such disputes, however, on the basis of this provision of the law, persons who have a land plot in their legal use apply to the court, and they have erected an unauthorized building on it. The claims are all identical - "on the recognition of the right to unauthorized construction." In accordance with paragraph 1 of Article 6 of the Civil Code, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. It does not follow from paragraph 3 of Article 244 of the Civil Code that a court decision can recognize ownership of an unauthorized building if the person who owns the right of ownership or the right of permanent land use on the land has erected an unauthorized building on his land. However, the courts in this case recognize the right to unauthorized construction. The decision of the Karatau District Court of Shymkent dated October 15, 2018 satisfied the claim of H. to the Akimat of the city of Shymkent on recognition of ownership of an unauthorized building - an apartment building located on a land plot owned by the plaintiff. By the decision of the Alatau District Court of Almaty dated April 8, 2019, S.'s claim to the Akimat of Almaty for recognition of ownership of an unauthorized building in the form of an apartment building located on a land plot owned by the plaintiff was satisfied. The decision of the Medeu District Court of Almaty dated March 19, 2018 satisfied the claim of Sh. to the Akimat of Almaty on the recognition of ownership of an unauthorized residential building located on a plot of land owned by the plaintiff.  By court decision No. 2 of the city of Uralsk, West Kazakhstan region, dated May 11, 2018, A.'s claim to the akimat of the city of Uralsk for recognition of ownership of an unauthorized building located on a land plot owned by the plaintiff was satisfied. The decision of the Karasai District Court of the Almaty region dated December 22, 2017 satisfied the claim of Zh. to the Akimat of Karasai district on recognition of ownership of an unauthorized residential building located on a land plot owned by the plaintiff. In these cases, the persons who created the unauthorized construction did not take appropriate measures to legalize it.

By a decision of the Kostanay City Court dated July 30, 2018, M.'s claim to the mayor of Kostanay for recognition of ownership of an unauthorized building was denied. It was established that the plaintiff was unable to commission the house on her own due to the lack of necessary documents. The court of first instance motivated the refusal by the fact that the plaintiff does not have the right to demand in court recognition of ownership of an unauthorized building on a land plot belonging to her. By a resolution of the judicial board of the Kostanay Regional Court dated September 13, 2018, the court's decision was overturned, and a new decision was made to satisfy the claim. The Court of Appeal concluded that, in accordance with Article 244 of the Civil Code, the house belongs to unauthorized construction, since it was created without obtaining permits. The court referred to subparagraph 3) of paragraph 1 of Article 74 of the Law on Architecture and pointed out that the construction of the country house was carried out without compliance with the licensing procedure and prior approval, since the plaintiff was refused to issue an APZ and approve the acceptance certificate, which was the basis for the plaintiff's appeal to the court for recognition of ownership rights in accordance with Article 244 of the Civil Code. At the same time, the court took into account the technical conclusion, which established that all structural elements of the building are in good working order, have no dangerous deformations, defects and damages. The operation of the garden house does not pose a threat to the life and health of citizens, which makes it possible to satisfy the plaintiff's claims. In a similar category of cases, the courts make decisions that dismiss the claim. By the decision of the Saryarkinsky District Court of Nur-Sultan, P.'s claim to the akimat of Astana for recognition of the right to unauthorized construction was denied. The case established that the plaintiff has been the owner of the housing construction since 1964. By the decisions of the legalization Commission dated June 4, 2006 and January 8, 2016, the plaintiff legalized unauthorized buildings erected on a plot of land owned by her. In this case, the plaintiff raised the issue of ownership of unauthorized buildings that had not been legalized and were put into operation by her on her own. The act of acceptance dated September 18, 2017, was not registered by the Department of Architecture and Urban Planning, and the actions of the Department were challenged in court in a separate proceeding, but were recognized as legitimate. The court, rejecting the claim, concluded that according to the provisions of Article 244 of the Civil Code, the acquisition of ownership of an unauthorized building is allowed if it is erected on a plot of land that does not belong to the person who erected the building. That is, for persons who have erected buildings on land plots belonging to them by right of ownership, the legislator has provided other ways to formalize their rights. The Court referred to the provisions of article 74 of the Law on Architecture, from which it follows that the owner independently carries out the commissioning of technically uncomplicated facilities completed by construction. The acceptance certificate, drawn up in the form, is the exclusive source document for the registration of property rights to a built object and is subject to mandatory registration with local executive bodies performing functions in the field of architecture and urban planning.

Zh. When applying to the court to the mayor of Ridder city for recognition of ownership of an unauthorized building, she motivated it by the fact that in 2016 she arbitrarily erected an apartment building without design and estimate documentation, including without an approved project and declaration of conformity, conclusions on the quality of construction and installation work and compliance with the work performed. As a result, she was unable to commission a built house on a plot of land provided by Akim's decree No. 1339 dated December 28, 2015 with the right to temporary short-term land use (lease) for a period of 3 years for individual housing construction. The authorized body refused to register the act. By the decision of the Ridder City Court of the East Kazakhstan region dated February 27, 2017, the claim of Zh. satisfied, ownership is recognized for J. for unauthorized construction with subsequent registration of ownership. m. She filed a lawsuit with the akim of Saryarka district for recognition of ownership of unauthorized buildings – a bathhouse and a barn located on a plot of land belonging to her by right of ownership. Unauthorized buildings were erected in violation of the procedure established by law. According to the technical conclusion, the unauthorized building is attached to a residential building and complies with building codes and regulations in force on the territory of the Republic of Kazakhstan. By the decision of the Saryarkinsky District Court of Astana dated April 5, 2019, the claim was denied, since it was established in the case that the plaintiff did not apply to the local executive body in accordance with the established procedure regarding the registration of the acceptance certificate. By a decision of the judicial board for Civil Cases of the Almaty City Court, the decision of the Medeu District Court was overturned, with a new decision rejecting B.'s claim to the Akimat of Almaty for recognition of ownership of an unauthorized building. In rejecting the claim, the appellate instance stated that the plaintiff's ownership of the land plot, the evidence of compliance of the unauthorized structure with the requirements of architectural and construction legislation, and the absence of violations of the rights and legitimate interests of third parties in their entirety do not deprive the plaintiff of the right to legitimize the object he erected in accordance with the procedure provided for by law. On similar grounds, the decision of the judicial board for civil cases of the Akmola Regional Court of November 9, 2017 overturned the decision of the specialized interdistrict economic court of August 1, 2017, with a new decision rejecting the claim of K LLP to the akimat of the Zerendinsky district on recognition of ownership of unauthorized buildings. There is a judicial practice when the same judge makes different decisions in similar cases in the same court (Akmola region). On May 16, 2018, the Tselinograd District Court issued a decision to satisfy M.'s claim. to the akimat of the Tselinogoradsky district on the recognition of ownership of an unauthorized building. The court reasoned its conclusions by the fact that the land plot belongs to the plaintiff by right of ownership, the unauthorized structure complies with the requirements of the legislation on architectural, urban planning and construction activities, the preservation of the building will not entail a violation of the rights and legally protected interests of other persons and does not pose a threat to the life and health of citizens. The authorized body refused to issue an act of commissioning. Meanwhile, on July 23, 2018, the same judge ruled to dismiss S.'s claim to the akimat of the Tselinograd district for recognition of ownership of an unauthorized building – an apartment building. The court's refusal to satisfy the claim was motivated by the fact that the plaintiff built the house without obtaining permits and on a land plot owned by him, for which there is a different procedure for registering ownership of the newly erected structure.

Unauthorized construction is an apartment building, other building, building or other immovable property.

The courts satisfy claims based on the following criteria: - unauthorized construction meets the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities; - the construction does not violate the rights and legally protected interests of other persons, does not pose a threat to the life and health of citizens; - unauthorized construction was erected on a land plot legally owned by the plaintiff. By refusing to satisfy the claim, the courts proceed from the fact that the acquisition of ownership of an unauthorized building is allowed if it is erected on a plot of land that does not belong to the person who erected the building. That is, for persons who have erected unauthorized buildings on land plots belonging to them by right of ownership, the legislator has provided other ways to formalize their rights. The courts of Almaty have also developed a judicial practice of returning claims in this category of cases in accordance with subparagraph 1) of paragraph 1 of Article 152 of the CPC (the plaintiff did not comply with the procedure established by law for this category of cases or the procedure for pre-trial or out-of-court dispute settlement provided for by the parties' agreement and the possibility of applying this procedure has not been lost). For example, I., K., Zh. appealed to the court with a claim for recognition of ownership of an unauthorized building. By the ruling of the Medeu District Court of Almaty dated September 6, 2018, the statement of claim was returned on the grounds that the plaintiffs were not deprived of the right to legitimize their rights to an unauthorized building by drawing up an act of commissioning with attached technical documentation certifying compliance with building regulations during construction. On the same grounds, the ruling of the Zhetysu District Court of Almaty dated July 27, 2018 returned O.'s claim to the Akimat of Almaty for recognition of ownership of an unauthorized building. Returning the claim, the court pointed out that the plaintiff had not provided evidence of the impossibility of registering ownership of the unauthorized building, since the plaintiff had not previously performed any actions to collect technical documentation. In accordance with Part 1 of Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed rights, freedoms and legitimate interests. There is no mandatory pre-trial dispute resolution procedure for this category of cases. Local executive authorities also act illegally when they recommend that land owners apply to the court to recognize the right to unauthorized construction. Moreover, the generalization established that they mostly do not participate in such cases, the application for dispute resolution is submitted in their absence. In essence, they recognize the claim, and the review indicates that if the unauthorized building meets the requirements of the law, then they believe that the claim is justified. For example, such a review is available in the case file on the claim of D. to the Akimat of Almaty, the third party of the KSU "Department of Architecture and Urban Planning of Almaty" on the recognition of ownership of an unauthorized building (Medeu District Court of Almaty).

The generalization showed that there is no uniform practice in courts in this category of disputes. When considering disputes about the right to unauthorized construction (when the plaintiff is the owner or permanent land user of the land plot and the developer of the unauthorized construction), the courts should proceed from the following. By virtue of article 34 of the Constitution of the Republic of Kazakhstan, everyone is obliged to comply with the Constitution and legislation of the Republic of Kazakhstan. The right to a land plot and the right to buildings located on it are inseparable from each other (Article 52 of the Land Code). The right of the owner of the land plot to build on it follows from the norm of Article 188 of the Civil Code. However, any right of a person must not violate other laws. As mentioned above, unauthorized construction is an apartment building, other structure, structure or other immovable property created on land not converted into land plots owned by the state, on a land plot that does not belong to the person who carried out the construction without obtaining a permit (paragraph 1 of Article 244 of the Civil Code). In accordance with article 12 of the Law on Architecture, the use of land plots by owners or land users for development (including laying communications, engineering preparation of the territory, landscaping, landscaping and other types of site development) can only be carried out in accordance with the design documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan and compliance with the intended purpose or easement, zoning of the territory, red lines and building regulation lines, rules for the organization of construction and passage of licensing procedures in the field of construction and operation. According to article 17 of the said law, non-compliance with state standards in the field of architecture, urban planning and construction, deviation from the established procedure for the development, coordination and approval of urban planning, architectural, construction and other design (design estimates) documentation are violations of established norms and requirements and entail liability provided for by legislative acts of the Republic of Kazakhstan. These violations also include unauthorized construction, as well as changes in the architectural appearance, redevelopment (re-equipment, redevelopment) of buildings, individual rooms and (or) parts of the building. It is also necessary to notify the authorized authorities about the start of construction (paragraph 12 of Article 68 of the Law on Architecture). This means that the owner or permanent land user has the right to erect real estate objects in compliance with the specified norms of the law. Since the persons who built the unauthorized building do not have any documents for it, but they own the land plot by right of ownership or permanent land use, they must apply to the authorized body to legalize the unauthorized construction. This meaning is embedded in Article 244 of the Civil Code, that is, it follows from this rule that if the land does not belong to a person, but he erected an unauthorized building on it, then only the court can decide on the right to unauthorized construction. If the land belongs to a person, which must be confirmed by appropriate evidence, and the person has erected an unauthorized building on his land, the legislator gives him the right to resolve this issue in an authorized body. Therefore, in Article 244 of the Civil Code, the legislator identifies cases when the right to unauthorized construction is subject to protection in court. In the event that the authorized body refuses to issue the necessary documents that confirm the compliance of the illegal construction with the established urban planning, building codes and other legal norms, the person who erected the unauthorized building on his land plot has the right to file an application with the court in accordance with Chapter 29 of the CPC. Accordingly, such a dispute is considered in special claim proceedings. In accordance with article 74 of the Law on Architecture, the owner independently carries out the commissioning of technically uncomplicated facilities completed by construction. The acceptance certificate of the constructed object, drawn up in form, is the exclusive source document for the registration of property rights to the constructed object and is subject to mandatory registration with local executive bodies performing functions in the field of architecture and urban planning. If the authorized body prevents the commissioning of the facility, the person has the right to defend his rights also in accordance with Chapter 29 of the CPC by appealing the decision of the authorized body.

When considering disputes under Chapter 29 of the CPC, courts should not formally recognize the actions of state bodies as legitimate just because an unauthorized building was erected by a person in violation of the procedure established by law. This circumstance may be the basis for bringing the developer to administrative responsibility. Therefore, when considering a dispute in accordance with Chapter 29 of the CPC, the court must collectively establish whether the person who created the unauthorized building took appropriate measures to legalize it, how lawfully the authorized body refused to register the right to unauthorized construction, whether significant violations of architectural, urban planning and building regulations were committed during construction, whether such a building poses a threat to the life and health of citizens, to clarify the issue of compliance of unauthorized construction with environmental standards and regulations and other legislative norms of the Republic of Kazakhstan. Thus, the court should not replace the authorities responsible for checking unauthorized buildings for compliance with architectural, urban planning, construction and other standards for the commissioning of buildings. Therefore, a claim for recognition of ownership of an unauthorized building, where the land belongs to the owner and the developer in one person, cannot be used to simplify the registration of rights to a newly created real estate object in order to circumvent the norms of special legislation. Consequently, the position of the courts should be recognized as correct, which, when filing a claim for recognition of the right to unauthorized construction (when the plaintiff in one person is the owner or permanent land user of the land and the developer of unauthorized construction), refuse to satisfy it on the above grounds. 

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