Counterclaim to the statement of claim for the removal of obstacles by demolishing an independently built structure
To the judge of the Nauryzbay District Court of Almaty a.m. Medetova
Shugyla microdistrict, 347/11
+7 (727) 333‒13‒55 +7 (727) 333‒13‒51
/ 771 425 77 76
Defendant: A. K. O.
IIN:...............
Almaty, Sh / a,
79 M. T. Street, Apartment 2
8 708 .
attorney lawyer Sarzhanov Galymzhan Turlybekovich
Legal office" law and law"
IIN 201240021767.
Republic of Kazakhstan, 050002, Almaty, Almaly district, abylai Khana Ave., 79/71, office 304.
e-mail: info@zakonpravo.kz website: www.zakonpravo.kz
Tel.: +7 708 578 57 58 / 8 727 978 57 55.
Applicant: M. K. A.
IIN: 5.
Address: Almaty, Karagaily district,
79 M. T. Street, Apartment 3
Representative by power of Attorney: B. Z. M.
Phone: 8 777 .
The opposite opinion
to the statement of claim for the elimination of obstacles by demolishing an independently built structure
In your production, a civil case No. 7585-24-00-2 / 581 is being considered plaintiff M. K. A. (hereinafter referred to as the civil plaintiff) defendant O. A. K.(hereinafter referred to as the civil defendant), on a claim for the removal of obstacles by demolishing an independently built structure.
We do not agree with the plaintiff's lawsuit on the following grounds:
The defendant was recognized as the owner in accordance with the contract for the purchase of a house with a land plot dated January 31, 2013. In this agreement, the land plot is not specified as a common share. In the aforementioned house, the defendant lives with his family.
In accordance with articles 6,25,26 of the Constitution of the Republic of Kazakhstan, state property and private property are recognized and equally protected in the Republic of Kazakhstan. Housing is inviolable. Deprivation of housing without a court decision is not allowed. Citizens of the Republic of Kazakhstan may keep in private ownership any property that they have received legally and is guaranteed by law.
The plaintiff has been living with his family since 1980 in 3 apartments of 3-apartment building No. 79, located on M. T. Street, Karagaily microdistrict, Almaty. The total area of the land plot belonging to this house is 0.1390 ha, in accordance with Article 209 of the Civil Code of the Republic of Kazakhstan and Article 53 of the Land Code of the Republic of Kazakhstan, the right of private ownership of land is shared.
In the documents establishing the right of ownership submitted by the plaintiff to the court, it is stated that the right of private ownership of the land belonging to the plaintiff himself is common equity. All ownership documents were obtained in 2009.
However, in the documents establishing the right of ownership of the defendant, it is clearly stated that the right of private property is private, according to the definition of the Government State Corporation for citizens NJSC. At the same time, the documents of the defendant's Land Management Project (Zemleustroitelny project), the state act on the right of private property, the technical passport do not contain information that states a common share, but rather the defendant's right to private property is recognized as private.
Since the plaintiff's apartment is located at the end of the courtyard, the exit to the street passes through the courtyard, which belongs to 1.2 apartments. We believe that the arguments that there is no other way out to the street are unfounded, since there is another way through the land plots belonging to apartments 1 and 2. The proof is that the plaintiff has a very good chance of getting out on the road behind the House.
As a result of the above grounds, it can be established that the defendant's private land use rights are violated on the part of the plaintiff.
Because the total area of the cadastral land plot No. 20-322-029-056 belonging to the defendant is indicated as 0.0110 hectares. At the same time, the cadastral value of the real estate object on the territory of the specified land №20:322:029:056:1:2 according to the technical passport of buildings and structures, the following construction facilities were built on the territory of a land plot of 0.0110 hectares on 109.9 square meters:
- Individual residential / individual residential house 49.6 sq. m.;
- Residential building / residential Wharf 22.0 sq. m.;
- Cold seal / cold storage box 4.9 square meters;
- Asylma / Naves 33.4 square meters.
According to the results of inspections by all competent authorities, the defendant said that no offenses were committed on the land plot and the above-mentioned construction facilities and met all technical requirements.
In accordance with Part 3 of Article 188 of the Civil Code of the Republic of Kazakhstan, the owner has the right to take any actions in relation to the property belonging to him at his own discretion, to own, use and otherwise dispose of the property.
13.10.2023 at 11 o'clock we attended a field court session, during the field court session, we clearly saw that the plaintiff, in addition to the defendant's land plot, has an additional exit road, where the plaintiff can go to the paved road with the back of his house, not along the ravine. To be clear, the path of the plaintiff from behind his house will be 1.5-2 meters wide, between the plaintiff's House and the neighboring Daniyar's barn. These words were spoken on 10/17/2023 at 15:30, Daniyar's neighbor, interviewed as a witness, confirmed our arguments, in which the witness brought Denmark to court that the distance between the plaintiff and his stable was 1.5-2 meters.
In addition, all the neighbors ' land plots were independently fenced, and none of them asked permission from each other during the siege.
As evidence of this, according to the Act No. 1288 of the inspection conducted by the competent authority on 28.12.2024, as a result of the inspection of the plaintiff's land plot and the house, a number of violations were revealed, and according to the results of the inspection, the owner was issued an Order No. 122/131 (presumption) dated 22.02.2024.
According to Article 15 of the Constitution of the Republic of Kazakhstan, everyone has the right to protect their rights and freedoms by all means that do not contradict the law.
According to Article 8 of the Civil Procedure Code of the Republic of Kazakhstan, everyone has the right to apply to the court in accordance with the procedure established by this code to protect their violated or disputed rights, freedoms or legitimate interests.
During the inspection of the object located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., House 79, Apartment 2, the subject of compliance with the requirements in the field of architectural, urban planning and construction activities is a residential building on a land plot (literch.A.), residential contiguous construction (literch.A1), it was established that the roof (liter) was erected.
Also, during the inspection of the facility with the municipal state institution" Department of urban planning control of Almaty", it was found that a foundation measuring 5.5 m x 6.6 M was built on the above - mentioned land plot under the existing roof with a basement device measuring 2.7 m x 3.0 m, a height of 1.73 m.
In accordance with subparagraph 2 of Paragraph 2 of Article 60 of the law" on architectural, urban planning and construction activities in the Republic of Kazakhstan"(hereinafter referred to as the law)"in coordination with local executive bodies of cities of Republican significance, the capital, districts (cities of regional significance), the customer (owner) can carry out the construction of household structures by sketches (sketch projects) without design (design and estimate) documentation: on the territory of private household plots, as well as on the plots of horticultural and horticultural partnerships (societies)". "it is said that the foundation under the roof does not need to be repaired or documented.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties independently choose their position, methods and means of its protection and independently of the court and other persons participating in the case.
We consider the claim of the plaintiff to recover expenses for the payment of 300,000 tenge for the assistance of a representative in accordance with Article 113 of the APK of the Republic of Kazakhstan illegal.
After all, in the materials of the civil case, the contract with the lawyer and the receipt of payment are not presented. In particular, it is stated that in accordance with paragraph 1 of Article 113 of the Civil Code of the Republic of Kazakhstan, expenses for payment for the assistance of a lawyer are collected in the amount of expenses actually incurred by the party.
In accordance with paragraph 2 of Article 35 of the entrepreneurial code, individuals who meet one of the conditions are subject to mandatory registration with the tax authority as an individual entrepreneur:
* attracting hired workers to permanent work;
* Annual income from business activities exceeding 12 minimum wages.
As you can see, the activity of a legal consultant cannot fall under the contract, at least with regard to annual income because the legal consultant earns 70,000 tenge per month Deng is unreasonable and therefore requires registration as an individual entrepreneur with the tax authorities.
At the same time, in accordance with paragraph 3 of Paragraph 2 of Article 683 of the tax code of the Republic of Kazakhstan, a legal consultant is not entitled to apply special regimes (patent, simplified tax, fixed deduction) for consulting services, activities in the field of Law, Justice and justice, the use of a simplified special regime for small businesses does not allow this. Consequently, a legal consultant, as an individual entrepreneur, can register his entrepreneurial activity in the general regime.
The tax committee also believes that it is more profitable for legal consultants to register as individual entrepreneurs under the general regime:
* Answer of the chairman of the state Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan to question No. 557332/1 dated July 19, 2019;
* Answer of the chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan dated March 29, 2019 to question No. 540654 dated March 14, 2019.
According to Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, the court, at the request of the party in whose favor the decision was rendered, deducts from the other party the costs of paying for the assistance of a representative (several representatives) who participated in the process and was not in an employment relationship with this party, in the amount of the expenses actually incurred by the party.
After all, in the materials of the civil case, the contract with the lawyer and the receipt of payment are not presented. In particular, it is stated that in accordance with paragraph 1 of Article 113 of the Civil Code of the Republic of Kazakhstan, expenses for payment for the assistance of a lawyer are collected in the amount of expenses actually incurred by the party.
In accordance with paragraph 2 of Article 35 of the entrepreneurial code, individuals who meet one of the conditions are subject to mandatory registration with the tax authority as an individual entrepreneur:
* attracting hired workers to permanent work;
* Annual income from business activities exceeding 12 minimum wages.
As you can see, the activity of a legal consultant cannot fall under the contract, at least with regard to annual income because the legal consultant earns 70,000 tenge per month Deng is unreasonable and therefore requires registration as an individual entrepreneur with the tax authorities.
At the same time, in accordance with paragraph 3 of Paragraph 2 of Article 683 of the tax code of the Republic of Kazakhstan, a legal consultant is not entitled to apply special regimes (patent, simplified tax, fixed deduction) for consulting services, activities in the field of Law, Justice and justice, the use of a simplified special regime for small businesses does not allow this. Consequently, a legal consultant, as an individual entrepreneur, can register his entrepreneurial activity in the general regime.
The tax committee also believes that it is more profitable for legal consultants to register as individual entrepreneurs under the general regime:
* Answer of the chairman of the state Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan to question No. 557332/1 dated July 19, 2019;
* Answer of the chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan dated March 29, 2019 to question No. 540654 dated March 14, 2019.
According to Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, the court, at the request of the party in whose favor the decision was rendered, deducts from the other party the costs of paying for the assistance of a representative (several representatives) who participated in the process and was not in an employment relationship with this party, in the amount of the expenses actually incurred by the party.
The total amount of these expenses for property claims should not exceed ten percent of the satisfied part of the claim. The amount of expenses for claims of a non-property nature is collected within reasonable limits, but it should not exceed three hundred monthly calculation indices.
Based on this article, Zhaupker applied for legal assistance to the legal office "Law and Law", concluded an agreement No. 1808/23 and paid 300,000 tenge to the personal account of the office. Proof of this was the contract and the receipt given by Caspi Pei.
In accordance with article 166 of the Criminal Code of the Republic of Kazakhstan, the defendant submits an opinion to the court on the statement of claim, attaching documents that refute the arguments in relation to the claim, as well as copies of the opinion and the documents attached to it.
Based on the above, in accordance with article 166 of the APC of the Republic of Kazakhstan, the following,
I ask the court:
* Civil plaintiff M. K. A. to leave the statement of claim completely – without satisfaction;
· From the plaintiff, 300,000 tenge paid for the assistance of a lawyer in favor of the defendant – to recover.
With respect,
Lawyer: ________________/ G. T. Sarzhanov
Attention!
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