Withdrawal of land plots for state needs
Article 26 of the Constitution of the Republic of Kazakhstan establishes that the compulsory alienation of property for state needs is carried out only in exceptional cases provided for by law, subject to the mandatory condition of its equivalent compensation. The seizure of land plots for state needs is provided for by legislative acts, and is carried out regardless of the conscientious behavior of its owner. The retribution of the seizure of land plots from owners and land users is the main principle of the termination of the rights of legal entities and individuals. The procedure and mechanism for the seizure of land plots and the determination of its price are reflected in the norms of civil, housing, land legislation, as well as in a number of other regulatory legal acts (for example, in the Methodology for Assessing Real Estate when it is seized for State needs, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated December 07, 2007 No. 329). It should be noted that the rights to land plots may also be terminated due to the refusal of their subjects (art.82 CC RK). The owner or land user may renounce ownership of the land plot belonging to him or the right of land use by announcing this or by performing other actions indicating their removal from their rights to the land plot without intending to preserve these rights. Upon renunciation of ownership of a land plot, this land plot acquires the legal regime of ownerless immovable property, the procedure for termination of rights to which is established by civil legislation.
Withdrawal of land plots for state needs
In accordance with paragraph 3 of Article 242 of the Civil Code, ownerless immovable property is registered by the body carrying out state registration of the right to immovable property, at the request of the akim's office of the territorial structural unit, and after one year from the date of registration of the ownerless immovable property, the body authorized to manage communal property may apply to the court with a claim for recognition this item has entered into communal ownership. For the duration of being registered as ownerless property, such a plot may be transferred to temporary land use by another person. At the same time, the owner of a land plot or a land user is legally entitled to re-acquire the specified land plot in ownership or land use within one year from the date of registration as ownerless property. The Normative Resolution of the Supreme Court "On certain issues of the application by Courts of legislation on the seizure of land for State needs" No. 8 dated December 25, 2006 does not guide the courts on how to proceed if, during the consideration of claims by local executive bodies for the compulsory purchase of land, if its owners disagree with the seizure of land, it becomes clear that the disputed the land plots have been registered as ownerless, and what decision should be made by the court in this situation, if the one-year period from the date of taking such property has not expired. It also does not specify what the courts should do in cases where disputed lands are transferred for temporary use to third parties. Article 86 of the Land Code states that if the owner of a land plot or a non-governmental land user, after the forced alienation of a part of the land plot for state needs, cannot use the remaining part for its intended purpose, the entire land plot is redeemed. Meanwhile, the law does not specify who should assess whether, after the seizure of part of the land plot, the owner can use the remaining part for its intended purpose. Whether such an assessment would be the right of the landowner, the competence of a government agency (official), or whether such an assessment should be given by a court in cases of dispute. In accordance with Article 188 of the Civil Code, the owner of the property has the right to own, use and dispose of the property belonging to him at his discretion. Article 86 of the Land Code defines the rights of the owner or non-governmental land user of a land plot in case of forced alienation for state needs. It is noted that the owner or non-governmental land user of a land plot, in case of compulsory alienation for state needs, from the moment of receiving notification of the beginning of compulsory alienation of a land plot for state needs until the state registration of the right of state ownership to a land plot or termination of the right of land use, has the right to exercise the right to a land plot belonging to him and to make the necessary expenses ensuring the use of this land plot. the land plot in accordance with its intended purpose. In this case, the owner of a land plot or a non-governmental land user bears the risk of attributing to it costs and losses associated with new construction, expansion or reconstruction of buildings (structures, structures) on such a land plot during the specified period. Thus, the law does not provide for the restriction of any rights of the owner in the disposal of his own property at this stage.
Withdrawal of land plots for state needs
Consequently, the law does not limit the possibility of unfair behavior by the owner of the land plot, who, after receiving the above-mentioned written notification, may sell the plot to third parties, hiding the circumstances of the forced seizure, which may generate additional disputes and delay the processes of land seizure for state needs. It seems correct to make additions to legislative acts, considering the decision of the local executive body on the seizure (purchase) of a land plot as an encumbrance on the rights of the owner, which must be recorded in the registering authority. According to article 87 of the Land Code, land plot owners are guaranteed compensation for the value of the land plot, the amount, forms of payment and terms of payment of which are determined by Chapter 6 of the Law "On State Property". It should also be noted that the legislation does not explicitly provide for the protection of the rights and legitimate interests of third parties who have certain rights in relation to seized land plots that are not related to the rights of the owner or the rights of a non-governmental land user. Issues closely related to the seizure of land plots from owners should be specified in law enforcement practice.
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