On the prohibition of the construction of the projected administrative building and on the assignment of the duty of filling the excavation
A claim for recognition of the right to unauthorized construction is considered in a claim procedure, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute over the right.
Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.
Thus, claims for recognition of the right to unauthorized construction are filed and considered by the courts in all cases in the claim proceedings.
example:
A number of civil cases initiated by GASK Almaty against G.Sh. and "V" LLP resulted in a lawsuit to ban the construction of a projected 11- 31-storey administrative building on a plot of land owned by G.Sh., and subsequently a lawsuit to impose the duty of filling the excavation.
By the decision of the District court No. 2 of Almaly district of Almaty dated July 21, 2023, the claim was satisfied.
It was decided to oblige G.Sh., LLP "B" to backfill the excavation developed during the construction of the building located on the land at the address: Almaty city, Almaly district within one month from the date of entry into force of the decision.
According to the judicial acts, the defendants failed to comply with the indentation from the excavation of the facility under construction to the existing buildings (residential buildings) at a distance of more than 35 m (in fact, 15 m and 12 m instead of the standard 50 m), and the design documentation violated fire safety, namely, the regulatory conditions for the passage and operation of fire equipment were not provided. in the area of the 11-storey administrative building, the excavation, dug to a depth of 11 m, poses a threat to human life and health.
Construction is underway in a seismically dangerous and densely populated area.
Another example:
By the decision of the Almaly district Court No. 2 of Almaty dated September 14, 2023, the claim of B.D. to V.A. for the elimination of violations by dismantling the fence and existing structures was denied.
In support of the claims, the plaintiff indicated that the defendant had erected a fence and a structure on his land plot, which is confirmed by the layout of the land plot.
The boundaries of the adjacent land plot do not correspond to the deed of ownership with the cadastral number.
When making the decision, the court proceeded from the fact that, according to information from the branch of the NAO State Corporation Government for Citizens in Almaty, the actual boundaries of the parties' land plots do not correspond to the boundaries of previously issued acts of ownership, the discrepancy between the defendant's land area is 0.0059 ha, and the discrepancy between the plaintiff's land area is 0.0155 ha. Considering that the violated right is subject to judicial protection, the court's conclusions are correct.
Justification:
The range of circumstances of legal importance in cases of this category should be determined based on the general conditions that must be observed during the construction or reconstruction of any real estate object.
These conditions can be grouped as follows:
1) evidence of the existence of the right to the land plot on which construction is underway, or permission from the owner of this plot or the owner of an existing structure for construction or reconstruction;
2) evidence of compliance with the intended purpose and permitted use of the land, as well as the red lines established by the planning projects;
3) availability of approved project documentation, which is the basis for issuing a construction permit.;
4) the availability of a construction permit, that is, a document confirming the compliance of the design documentation with the requirements of the urban development plan of the land plot and giving the developer the right to carry out construction, reconstruction, and major repairs of capital construction facilities;
5) evidence of compliance with urban planning regulations, construction, environmental, sanitary-hygienic, fire-fighting and other rules and regulations;
6) evidence of compliance with the rights and legitimate interests of owners, landowners, land users and tenants of adjacent land plots and other real estate objects.
If an unauthorized building was erected by the owner (owner, user) of the land plot, then his rights to this plot must be confirmed by an entry in the State Register of Rights to Immovable Property and Transactions with it, as well as state acts, certificates and other documents certifying the rights to the land.
Another important aspect of proof in the case of recognition of property rights is the establishment of the security of the object. If an unauthorized building, wherever it is located, poses a threat to the life and health of citizens, then ownership of it cannot be recognized. The plaintiff's arguments, for example, that the object was erected in the center of its site and access to it is closed to other persons, have no legal significance.
Also, based on the results of the analysis, it should be noted that the evidence that the preservation of unauthorized buildings does not violate the rights and interests of third parties and does not pose a threat to the life or health of citizens, submitted to the court include: the conclusion of a construction expert examination, which would show that the erected structure complies with building and urban planning standards and regulations; the conclusion of the authorities fire protection, energy supervision; letters from related land users who do not object to the legalization of construction, etc.
For this purpose, the court, in the absence of the necessary conclusions of the competent authorities or if there is doubt about their reliability, has the right to appoint an expert examination according to the rules of procedural legislation.
Paragraph 3 of Article 244 of the Civil Code defines two cases in which a court may recognize ownership of an unauthorized building either for the person who carried out the construction (if this building was erected on land not formed into land plots owned by the state), or (if the building was erected on a land plot that does not belong to the person who carried out the construction) - for the person who owns the land plot, at the request of the relevant person.
The condition for satisfying the claim of an unauthorized builder is to provide him with the land plot on which the building was erected, in accordance with the established procedure, for the placement of the erected building.
The condition for satisfying the claim of the owner of the land plot or the person in whose lawful use the land plot is located is to reimburse the person who carried out the construction of expenses in the amount determined by the court.
In any case, ownership of an unauthorized building cannot be recognized for these persons if the building does not comply with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities and other legislation, that is, if the person who carried out the construction does not have the relevant documents, which is consistent with the requirements of paragraph 1 of Article 244 of the Civil Code.
The circle of persons involved in the case.
Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building).
It should be borne in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.
In each specific case, the composition of third parties whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied.
It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Paragraph 11 of the regulatory resolution "On certain issues of dispute resolution related to the protection of Home Ownership" clarifies that a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body.
The plaintiffs mostly correctly indicated the defendant, and at the same time, there are lawsuits when the plaintiff's claims for recognition of the right to unauthorized construction are made against an improper defendant.
Article 50 of the CPC provides that in the event of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to file an application for replacing the improper defendant with a proper one.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Jurisdiction
In accordance with Part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.
That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed property. If one of the parties to the case is a citizen, then such claims are considered by the district courts.
In cases where the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with part 1 of Article 27 of the CPC.
When determining the jurisdiction of cases involving the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject matter of the parties to the dispute and the nature of the legal relationship in their entirety.
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.
When accepting a claim for recognition of ownership of an unauthorized non-residential building, as well as a claim by an authorized body for the demolition of such a building, questions often arise about jurisdiction when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, but the disputed property is being used or will be used. for business purposes.
Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute involving him is subject to the jurisdiction of a court of general jurisdiction.
The fact that the subject of the claim is an industrial premises that can be used for entrepreneurial activities does not affect the jurisdiction of the dispute, since the law does not restrict the right of individuals to own any property, including non-residential/industrial premises.
Thus, under the above circumstances, there are no grounds for refusing to accept a claim for recognition of ownership rights or for the demolition of such an unauthorized building by a court of general jurisdiction.
State duty
In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.
By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.
Subparagraph 11) of Part 1 of Article 104 of the CPC stipulates that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day of filing the claim.
Civil law disputes over the ownership of unauthorized buildings relate to property-related claims, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.
According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim.
The state fee for filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property, with documents on its market value attached to the application (assessment report, information certificates on the market value of immovable property).
The rules of Part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not recover from local executive bodies in favor of plaintiffs the costs of paying state fees.
It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the plaintiff's material rights.
Earlier, the Supreme Court provided clarifications on this issue, including in the regulatory decree "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases."
These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.
At the same time, there are cases when courts have accepted lawsuits and considered cases without assessing the market value of a real estate object or with only the title page of the real estate valuation report, while its research part contains approaches and methods, description, technical and design characteristics and other information about the research object in the materials. the case was missing.
The absence of a document confirming the market value of the constructed facility prevents the determination of the amount of the state fee to be paid when filing a claim.
Regulatory and legal framework
The main regulatory legal acts regulating the recognition of the right to unauthorized construction and to be applied in the consideration of cases in this category are:
- The Constitution of the Republic of Kazakhstan; - The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); - The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
- The Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code);
- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);
- The Law of the Republic of Kazakhstan "On Local Government in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);
- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code);
- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code) (hereinafter referred to as the Tax Code);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" dated July 9, 1999 No. 10 (hereinafter referred to as the regulatory resolution "On certain issues of the application of legislation on the right of ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of dispute Resolution related to the protection of Ownership of housing" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of Dispute Resolution related to the protection of Ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of land legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of the application of land legislation by Courts");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter referred to as the regulatory resolution "On the application by Courts of the Republic of Kazakhstan of legislation on court Costs in civil cases");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of Inheritance legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Inheritance legislation by Courts");
- Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules for the Organization of construction)
- SNiP RK, regulating relations in the field of architecture, urban planning and construction. When considering disputes, the regulatory legal acts in force at the time of the emergence of the relevant legal relationship are subject to application.
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