Application for recognition as illegal and cancellation of the resolution of the Akimat on the refusal to privatize the apartment
The plaintiff, along with his younger brother, has been legally living in an apartment of the state housing stock for 10 years and has the right to privatize it. T. appealed to the court to declare illegal and cancel the decision of the Akimat of Ekibastuz to refuse to privatize the apartment. T. indicated that on November 7, 2013, when contacting the akim the city of Ekibastuz (hereinafter – Akim) on the privatization of apartment No. 2... on B. Street in the city of Ekibastuz (hereinafter referred to as the apartment) On the basis of the decision of the Akimat of Ekibastuz dated December 6, 2013 (hereinafter referred to as the decision on refusal of privatization), he was refused to privatize the apartment, since it was provided to the applicant and his brother without observing the order of priority.
Application for recognition as illegal and cancellation of the resolution of the Akimat on the refusal to privatize the apartment
He considers the contested decision to refuse to privatize the apartment illegal, referring to the fact that on May 21, 2004, he concluded an apartment rental agreement with GU "U", which has not been challenged or canceled by anyone. For 10 years, the authorized bodies have not demanded that the lease agreement be declared invalid, including a violation of the order of priority when providing an apartment. Thus, there were no grounds for refusing to privatize the apartment allocated to him from the state housing stock. He asked to declare illegal and cancel the decision to refuse to privatize an apartment from the state housing stock and oblige the Akimat of Ekibastuz, represented by the Akim, to eliminate the violations. By the decision of the Ekibastuz City Court of April 21, 2014, T.'s application was denied. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Pavlodar Regional Court dated June 18, 2014, the decision of the Ekibastuz City Court dated April 21, 2014 was amended. Regarding the refusal to declare illegal and repeal the decision to refuse to privatize an apartment from the state housing stock, a new decision was made to satisfy the application in this part. The court decided: to declare illegal and cancel the decision to refuse to privatize the apartment; to oblige the Akimat of the city of Ekibastuz to eliminate in full the violations of the rights of T. The rest of the decision of the court of first instance remains unchanged.
By an additional decision of the Appellate Judicial Board for Civil and administrative cases of the Pavlodar Regional Court dated July 29, 2014, 926 tenge were recovered from the Akim in favor of T., the bank's commission – 100 tenge, notary services – 2,038 tenge, representative services – 22,500 tenge. By the decision of the Cassation Judicial Board of the Pavlodar Regional Court dated September 16, 2014, the decision and the additional decision of the appellate instance remained unchanged. In the petition, the Akim asked to cancel the judicial acts disputed by way of supervision, pointing out that T. had not been registered as a person in need of housing from the state housing fund until November 6, 2007, and the housing commission had not issued a decision to provide the above-mentioned apartment to the applicant. The lease agreement with T. was concluded temporarily in order to preserve the housing stock until the registration of communal property rights, with a validity period for the sale of the apartment at auction. There is no evidence that the applicant received the apartment in 2004 as a person belonging to the category of "socially vulnerable segments of the population", and he has the right to privatize the apartment in accordance with the provision of Article 98 of the Law of the Republic of Kazakhstan "On Housing Relations". Having studied the case materials, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan upheld the contested judicial acts on the following grounds. The court found that T. He has been living in the apartment with his younger brother since the end of May 2003, which is also not disputed by the defendant. On May 28, 2003, he and GU "U" signed a one-year lease agreement for residential premises No. 208. By the decision of the Ekibastuz City Court of November 4, 2003, the apartment was recognized as ownerless and the right of communal ownership was recognized for it.On May 21, 2004, an apartment rental agreement was concluded between GU "U" and the applicant. By Resolutions of the Akimat of Ekibastuz No. 447/7 of June 23, 2005 and No. 506\8 of July 21, 2005, the applicant was appointed guardian of his minor brother Zh. Born on January 28, 1993. By the decision of the Ekibastuz City Court of September 7, 2007, the actions of officials of the Akimat of the city of Ekibastuz on the refusal of T., who is the guardian of Zh.'s younger brother, to register for housing from the state housing fund in the category of "single-parent family" were recognized as illegal.
The court ordered officials of the akimat of the city of Ekibastuz to register T., who is the guardian of his younger brother. The said court decision was executed by the local executive body, and by the decree of the Akimat of the city of Ekibastuz No. 626/9 dated On November 6, 2007, T. was registered as a citizen in need of housing from the state fund in the category of "single-parent family" with a family of two people. From the letter of the State Institution "O" No. 7-25/143 dated April 8, 2014, it follows that for the specified period, T. Together with their younger brother, they are registered as persons in need to receive housing from the state housing fund in the category of "single-parent family" for No. 640. Meanwhile, by the decree of the Akimat of Ekibastuz No. 1245/12 dated December 6, 2013, T. refused to privatize the apartment on the grounds that the applicant was allocated housing not in the order of priority. The court of first instance refused to satisfy T.'s application. with reference to the fact that at the time of moving into the apartment, the applicant and his brother were not in line to receive housing from the state housing stock, and currently their turn has not yet come. The appellate instance found that, in fact, at the time of moving into the apartment, T. was not in the queue for housing from the state housing stock, however, the current legislation regulating the procedure for privatizing housing from the state housing stock does not provide for a refusal to privatize, as housing is not in the order of priority. The cassation instance agreed with the above conclusions of the appellate instance. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan considered the conclusions of the appellate and cassation instances to be justified and consistent with the norms of current housing law.In accordance with article 2 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), the privatization of housing is the acquisition by citizens of the residential premises occupied by them in houses of the state housing stock, carried out in accordance with the legislation of the Republic of Kazakhstan. According to article 13 of the Law, the tenant of a dwelling from the state housing stock, with the consent of adult family members, has the right to privatize the dwelling on the terms and in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
Application for recognition as illegal and cancellation of the resolution of the Akimat on the refusal to privatize the apartment
On the basis of the lease agreement dated May 21, 2004, concluded between GU "U" and the applicant, T. lives in the disputed apartment with his younger brother. The employment contract is open-ended and has not been challenged or invalidated in accordance with the procedure established by law. From the evidence provided by the parties, it can be seen that T., along with his younger brother, have been living in a residential building in public housing stock for 10 years legally and, in accordance with article 2 of the Law, have the right to privatize it. Under the circumstances described, T.'s refusal the privatization of the apartment, due to the fact that he received it out of turn, is illegal and cannot serve as a basis for refusing to satisfy his application. Khodaystvo's arguments are untenable, since the applicant has not provided evidence to support his claims, whereas according to Article 65 of the CPC, each party is obliged to prove the validity of its claims and objections. The decision of the Appellate Judicial Board for Civil and Administrative Cases of the Pavlodar Regional Court dated June 18, 2014, the additional decision of the Appellate Judicial Board for Civil and Administrative Cases of the Pavlodar Regional Court dated July 29, 2014 and the decision of the Cassation Judicial Board of the Pavlodar Regional Court dated September 16, 2014 remained unchanged. The costs of paying for the representative's services in the amount of 30,000 tenge were collected from the akim of Ekibastuz in favor of T.
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