A law firm in Almaty for civil cases on recognition of ownership of an unauthorized building.
The main regulatory acts regulating relations on the recognition of ownership rights to unauthorized construction are: 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 referred to as the CPC), the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), the laws of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in Republic of Kazakhstan" No. 242 dated July 16, 2001 (hereinafter referred to as – The Law on Architectural Activity), "On Individual Housing Construction" No. 213 dated November 03, 1994, "On Local and State Administration and Self-government in the Republic of Kazakhstan", etc. The courts are also guided in resolving cases by the regulatory rulings of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" No. 10 dated July 09, 1999, "On certain issues of dispute resolution related to the protection of the right of ownership of housing" No. 5 dated July 16, 2007, "On certain issues of the application of courts of Land Legislation" No. 6 dated July 16, 2007, "On some issues of the application of Inheritance legislation by Courts" No. 5 dated June 29, 2009.
A law firm in Almaty for civil cases on recognition of ownership of an unauthorized building.
A total of 54 cases have been submitted to the Supreme Court for examination. An analysis of cases and judicial acts has shown that local courts generally correctly apply the norms of legislation when considering cases of the generalized category. However, in some cases, there is a different interpretation of the law. In accordance with Part 1 of Article 33 of the CPC, claims for rights to buildings, premises, structures, and other objects firmly connected to land (immovable property) are filed at the location of these objects. In cases where the plaintiffs are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using the building for entrepreneurial activities, claims are filed with specialized interdistrict economic courts in accordance with part 1 of Article 30 of the CPC. However, these jurisdiction requirements are not always respected. Due to the violation of the rules of procedural law on the jurisdiction of the dispute, the decision of the appellate judicial board of the Kostanay Regional Court of March 14, 2011 overturned the decision of the Kostanay City Court of February 01, 2011 on the claim of A. to the akimat ofKostanay on recognition of ownership rights to unauthorized construction. The Board pointed out that A.'s claims were filed in connection with his entrepreneurial activity and actually relate to the interests of IP "A." which, in accordance with Article 30 of the CPC, is the jurisdiction of the economic court. The courts need to take into account the provisions of paragraph 2 of the regulatory decree of the Supreme Court No. 5 of July 16, 2007 "On certain issues of dispute resolution related to the protection of ownership of housing," according to which a claim for ownership of housing is filed with the court at its location. A claim filed in violation of the rules of jurisdiction is returned, and one accepted for production is sent according to the jurisdiction. A study of judicial acts has shown that the courts do not have a uniform practice in resolving the issue of a proper defendant in cases of this category. The courts of Zhambyl and Karaganda regions believe that claims for recognition of ownership of an unauthorized building should be filed against the State Institution "Akim's Office".
This position is motivated by the fact that, in accordance with articles 26, 30 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan", both regional and district (cities of regional significance) akimats are not legal entities. According to subparagraph 2) of Article 1 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan", the akim's office is a state institution, that is, a legal entity that ensures the activities of the local executive body (if established) and akim. The Kostanay Regional Court considers it appropriate to involve the akim of the relevant administrative-territorial unit as a representative of the state, whose competence also includes the provision of land plots, as an appropriate defendant in this category of disputes. The courts of North Kazakhstan, Akmola regions and Astana city determine akimats as appropriate defendants. According to paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of ownership of housing," a claim for recognition of ownership of an unauthorized dwelling is filed with a local executive body and is considered by a court in the order of claim proceedings. Subparagraph 4) of Article 1 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan" defines that a local executive body (akimat) is a collegial executive body headed by the akim of a region (city of republican significance and capital), district (city of regional significance), exercising local public administration and self-government within its competence. on the relevant territory. With
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