On the recognition of illegally erected non-residential premises as unauthorized construction and their demolition at the expense of the defendant
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:
KSU "Department of Urban Planning Control of Almaty city" filed a lawsuit against an individual entrepreneur O.N., with the involvement of third parties KSU "Department of Urban Planning and Urbanism of Almaty city", N.K. for recognition of illegally erected non-residential premises in the form of a car wash and a car complex with a cafe with a total area of 329.4 square meters.m unauthorized construction, on their demolition at the expense of the defendant O.N., the court found that the land plot where the buildings were erected is indivisible and part of this land plot is occupied by the adjacent owner N.K.
In accordance with the act on the right of private ownership of a land plot, the intended purpose of the property is indicated - for the operation and maintenance of an apartment building.
According to the technical data sheet dated December 28, 2016, non-residential premises in the form of a car wash and a car complex with a cafe with a total area of 329.4 square meters are located at the above address.
It was also established that in 2012, the GASK of the city of Almaty, administrative protocols were drawn up against the owner O.N. for the construction of non-residential premises of letter A and an apartment building without design and estimate documentation that had not been examined in accordance with the established procedure, and without the accompaniment of copyright and technical supervision, as well as an administrative protocol for the demolition of former buildings. letters A, A1, A2, A3 with violations of the rules of landscaping of cities and towns.
Thus, the defendant uses the land plot not for its intended purpose, outside the boundaries specified in the identification document, that is, the construction of a car wash and a car complex with a cafe was carried out by the defendant in the absence of permits, in violation of construction and technical standards and regulations.
At the same time, based on the act of inspection of the facility dated October 23, 2020, it was established that the defendant voluntarily occupies land owned by the state with an area of 192 square meters.m. The above circumstances served as the basis for the decision of the Council of Economic and Social Council of Almaty dated March 11, 2021 on the satisfaction of the claim.
Justification:
Both in the case of recognition of an object as an unauthorized construction, and when resolving claims for unauthorized reconstruction, it is necessary to find out whether the disputed object meets the established urban planning parameters and requirements, the legal regime of the land, or is being built with other violations of established norms and rules, and also poses a threat to the life and health of citizens.
During the generalization of judicial practice by local courts, problematic issues related to the recognition of property rights under the statute of limitations were discussed.
When resolving disputes on the recognition of ownership of immovable property, courts should keep in mind that current legislation distinguishes the grounds for the emergence of ownership rights due to the statute of limitations (Article 240 of the Civil Code) and in connection with unauthorized construction (Article 244 of the Civil Code).
Article 240 of the Civil Code lists the conditions that together constitute the basis for the emergence of ownership of immovable property by virtue of the statute of limitations.
Thus, conscientiousness, openness and continuity of ownership as one's own immovable property for seven years allows one to acquire the right to such property.
In this regard, it should be noted that the statute of limitations cannot apply to cases where an unauthorized building, including one located on an unlawfully occupied land plot, acts as an object of ownership and use, since in such a situation there is no such necessary condition as the integrity of the developer, since carrying out unauthorized construction a person should have been aware of the absence of he has grounds for the emergence of ownership rights.
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 related to 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 legal relations 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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