Recognition of ownership of an unauthorized building

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1 February 2025

Recognition of ownership of an unauthorized building

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.

The right of ownership to 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.

By the decision of the Taraz City Court of July 29, 2022, T.B. denied a claim to the mayor of Taraz for recognition of ownership of a residential building. The reason for the court's decision was the refusal of the local executive body to provide the plaintiff with a land plot for unauthorized construction.

The akim's resolution contains a reference to the negative conclusion of the land commission, which also contains a reservation about the possibility of resolving the issue of granting a land plot in court.

Subsequently, the conclusion of the land commission of the Akim of Taraz dated September 6, 2022 satisfied the plaintiff's application for the provision of land for the construction and maintenance of a residential building at the address: Taraz, Bereke massif.

This circumstance was the basis for the cancellation of the court's decision and the issuance by the court of appeal of a new decision on the satisfaction of the claim. At the same time, the conclusion of the KSU "Department of Architecture and Urban Planning of the Akimat of Taraz" dated November 1, 2022 on the compliance of housing construction with building regulations is also taken into account.

So, an example of a proper and lawful resolution of the case may be the decision of the Ust-Kamenogorsk City Court of November 30, 2022 on the claim of E.A. to the mayor of Ust-Kamenogorsk on recognition of ownership of an unauthorized building.

It should be noted that in this case, the decision of the court of appeal of March 1, 2023, is of better quality, where the conclusions of the court are clearly formulated and the reasons for the decision are outlined.

As established by the court, the unauthorized building was erected in 1965 by the plaintiff's great-grandfather on a plot of land that was not provided to him in accordance with the established procedure.

By virtue of paragraph 3 of Article 244 of the Civil Code, the right of ownership to 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.

Paragraphs 11, 12 of the regulatory decree "On certain issues of the application of legislation on the right of ownership of housing" clarified that the satisfaction of a claim for recognition of ownership of an unauthorized building 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, as well as provided that this site will be provided to the plaintiff in accordance with the procedure established by law.

The proof that the land plot will be provided to the person who carried out the unauthorized construction may be a document of consent issued by the akim to provide the plaintiff with the land plot.

The Court of Appeal stated that there was no evidence in the case indicating that the recognition of ownership of an unauthorized building would not entail a violation of the rights and legitimate interests of other persons, since the case file did not contain the consent of related land users (owners of residential and non-residential premises). In addition, the plaintiff has not provided evidence indicating the consent of the local executive body to provide her with a land plot occupied by an unauthorized building, provided that the plaintiff recognizes ownership of the unauthorized building. In this regard, the court of appeal has given the plaintiff time to obtain a document confirming the relevant consent of the local executive body. However, the plaintiff did not provide such a document to the court. Moreover, it was established that the decision of the land Commission of February 28, 2023, denied the plaintiff ownership of the land for the placement of an individual residential building. The reason for the refusal is the fact that the residential building is located in the 100-meter sanitary protection zone of the railway, whereas according to paragraph 2 of Article 58 of the Law on Architecture, the placement (construction) of residential buildings, educational organizations, healthcare and recreation facilities is not allowed in the sanitary protection zone, regardless of its parameters and affiliation. sports and recreation facilities, including the placement of horticultural and horticultural land plots, as well as the production of agricultural products. The reason for the refusal was also the finding of an unauthorized building, based on the General Plan of the city of Ust-Kamenogorsk, within the boundaries of the red lines of Sogrinskaya Street, that is, within the boundaries separating the territories of neighborhoods, neighborhoods, and other elements in the planning structure of settlements from streets (driveways, squares). In this regard, the use of the land for development was impossible. At the same time, housing construction is actually located on public lands. In accordance with paragraph 5 of Article 26 and paragraph 2 of Article 109 of the Land Code, land plots occupied by public territories in populated areas may not be privately owned, with the exception of land plots occupied by buildings and structures that are privately owned and necessary for their maintenance. Land plots from public lands may be granted to private ownership only after they are excluded from public lands. Thus, the court, having comprehensively checked the arguments of the parties, comparing them with the requirements of the law, made an informed decision.

The courts correctly take into account the inseparability of 19 rights to a land plot and the rights to buildings located on it (Article 52 of the Land Code), and take into account the right of the owner of the land plot to build on it, which follows from the norm of Article 188 of the Civil Code. At the same time, not every person's right is subject to judicial protection.

Based on this, as the judicial practice of the regions shows, there is an understanding that in Article 244 of the Civil Code, the legislator identifies cases when the right to unauthorized construction is subject to protection in court.

Thus, 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.

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.

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 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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