Complaint Department of Trade and Consumer Protection
Russian State Institution"Department of Trade for Consumer Protection
Ministry of Trade and Integration of the Republic of Kazakhstan by city Almaty"
Almaty, Bostandyk district, 050008/A15H7X6, Zhandosova street, 2.
from: KSK,
IIN: ……………,
Turkestan region, .....
+7 778 ....
Representative by proxy:
Lawyer Sarzhanov Galymzhan Turlybekovich
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 57 58; + 7 727 971 78 58.
Claim
Between LLP "..." (Hereinafter referred to as the Partnership) and K.S.K. there is a contractual relationship under the Preliminary booking Agreement for apartments no.MER-9/504-2023 dated 12/19/2023, where the Partnership, in accordance with clause 1.1, assumed obligations that "The Company undertakes to book, and K. S.K. undertakes to purchase from the Partnership an apartment in the apartment complex under construction. The MEREI residential complex is located west of Seifullin Avenue in Almaly district, Almaty, a 4-room apartment with an estimated total area of 134.95 m2, on the 3rd floor, in entrance No. 9. block No. 9, the preliminary numbering of the apartment is no.... by subsequently concluding a notarized contract for the transfer/purchase and sale of an apartment, on the terms provided for in this Agreement."
In accordance with clause 2.1 of the Agreement, the total cost under the Agreement is 65,570,550 tenge.
In accordance with the terms of the Contract, K.S.K. fully paid the cost of the apartment, as evidenced by the Certificate for ex.No. 556 dated 11.01.2024.
In addition, by clause 3.1.5 of the same Agreement, the Partnership undertook to transfer the apartment to K.S.K., after the commissioning of the Facility. At the same time, if K.S.K. delays payment of the final cost of the Contract, has not reimbursed the costs of maintaining the Apartment in accordance with p.3.3.8, p.3.3.9, p.3.3.11, p.3.3.12, p.3.3.13. of the Contract, has not paid the penalty If the Buyer fails to compensate for the damage and losses caused to the Product in accordance with clause 4.5 of the Agreement, then the deadline for signing the Main Agreement may be extended until all obligations under this Agreement are properly fulfilled.
Clause 3.3.8 of the Contract stipulates that "From the moment of signing the acceptance and transfer certificate, K.S.K. is obliged to reimburse the expenses/debts of the Organization."/A management company or other person (developer, etc.) who has paid the cost of utilities, including those used for household needs according to the readings of metering devices (household and/or individual) and/or at the rates of bills submitted by utility providers or other relevant organizations., as well as reimburse services for the maintenance of an apartment building before concluding contracts with the relevant communal organizations, regardless of the fact that K.S.K. and/ or his family members live in the apartment or any repairs are carried out in the apartment accepted according to the act of acceptance and transfer.
Also, clause 3.3.9 of the Agreement stipulates that "To bear the costs of re-registering the apartment in ownership (notarial, state duty, etc.). And also reimburse the Partnership for the costs of producing a technical passport for the apartment at the price and cost established by the bodies of technical research and inventory of real estate.
In addition, clause 3.3.10. of the Contract obliges K.S.K., "from the moment of signing the act of acceptance of the transfer / contract of transfer / purchase and sale of the apartment (whichever comes first) is considered a consumer of operational services and assumes all obligations for the maintenance of communal property, in accordance with the approved tariffs. The partnership assumes all obligations for the maintenance of communal property until the signing of the act of acceptance / transfer / contract of transfer / sale of the apartment.
Clause 3.3.11. of the Contract of K.S.K., is obliged to conclude an agreement with the management company for the provision of housing and maintenance services at the time of conclusion of the notarial contract for the transfer/ purchase and sale of the apartment and make an advance payment for maintenance and maintenance of the Facility for 4 (four) months
Clause 3.3.12. of the Agreement provides for "Making an advance payment to the Partnership for the removal of construction debris in 3 months."
Similar conditions were also concluded:
Preliminary reservation agreement for Storage room No.MER-KP-9/142-2024 dated 11.01.2024;
Preliminary reservation agreement for Parking space No.MER-PM-1/83-2024 dated 11.01.2024.
151, 152, 390 of the Civil Code of the Republic of Kazakhstan (Form and conditions of a written transaction of a Preliminary agreement), where it is stipulated that transactions are made orally or in writing, the written form of the transaction is made on paper or in electronic form. A written transaction must be signed by the parties.
However, before the registration of the main purchase and sale agreement, the Partnership, as a Developer, demanded that additional payment be made for the removal of construction debris and the production of a technical passport for the apartment.
- Payment for the removal of construction debris for 3 months at the rate of 350 tenge per 1 m2/month = 140,000 tenge;
- Payment for the production of a technical passport (760 tenge per sq.m.) = 101,384 tenge;
- Conclude an agreement with the Management Company (KSK) and make a payment for 4 months (170 tenge per m2) for the usable area in the amount of 80,000 tenge.
We cannot agree to these requirements because, in accordance with paragraphs 4 and 6 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
No one has the right to take advantage of their unscrupulous behavior.
We consider the developer's demands for additional payment for the removal of construction debris and the production of a technical passport when buying an apartment under a preliminary agreement to be unfounded and, accordingly, illegal, since the specific amount has not been agreed upon and is not provided for by the terms of the agreement, and in accordance with the legislation of the Republic of Kazakhstan, the Developer needs to justify excessive requests for the removal of construction debris and the production of a technical passport from the point of view of Good Faith, reasonableness and justice, and of course by analogy.
In accordance with Articles 382 and 392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the literal meaning of the words and expressions contained therein is taken into account. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole.
If the terms of the contract are not defined by the parties or the dispositive norm, the relevant terms are determined by the business practices applicable to the relations of the parties.
Thus, taking into account the good faith, reasonableness and fairness of comparison with other conditions, business practices applicable to the relations of the parties, we can determine that:
Payment for the removal of construction debris is not applicable in this case, since what kind of garbage can we talk about if K.S.K. did not start the repair work in the quadrangle;
We consider the payment for the production of a technical passport to be excessively high and requires revision, whereas clause 3.3.9 of the Contract provides for the costs of producing a technical passport for an apartment at the price and cost set by the bodies of technical research and inventory of real estate. According to the business practices applicable to these relations, the production and registration of a technical passport by an authorized body charges a maximum of 20,000 tenge.
Based on the above and guided by the Air Defense System on Consumer Protection,
I ask you to:
· Verify the legality of the sum's requirement to pay for the removal of construction debris in the amount of 140,000 tenge;
· Check the legality of the sum's requirement to pay for the production of a technical passport in the amount of 101,384 tenge;
· In case of detection of violations of the legislation, bring to justice.
With respect,
Proxy Representative Lawyer: ___________/ Sarzhanov G.T.
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