DISPUTES ARISING FROM HOUSING LEGAL RELATIONS ON MOVING IN
The concept of property rights is given in Part 1 of Article 188 of the Civil Code of the Republic of Kazakhstan. The legislator provides for the right of a subject to own, use and dispose of his property at his discretion. The lawsuits for moving into the premises, in fact, relate to the requirements for removing obstacles to the ownership and use of property.
These claims are one of the forms (methods) of protecting the right of ownership (other property rights) to housing, since they cannot be attributed to vindication or negatory claims provided for in Articles 260- 261,264 of the Civil Code. Article 25 of the Constitution and Article 22 of the Law "On Housing Relations" may serve as the legal basis for claims for settlement. According to Part 1 of Article 25 of the Constitution of the Republic of Kazakhstan, housing is inviolable.
The deprivation of housing is not allowed, except by a court decision. By virtue of Article 26 of the Constitution, citizens of the Republic of Kazakhstan can have any legally acquired property in private ownership.
22 of the Law of the Republic of Kazakhstan "On Housing Relations", according to which, in the event of termination of family relations with the owner, former family members may use the dwelling as an employer without specifying the period of employment, unless otherwise provided by a written agreement with the owner of the dwelling.
The study of the analyzed judicial acts showed that, along with the requirements for moving in, the plaintiffs asked the court to determine the order of use of housing, which is provided for in Article 94 of the Law of the Republic of Kazakhstan "On Housing Relations".
The specifics of the settlement cases are as follows.
Cases of settlement are considered by the courts in the claim proceedings, which complies with the requirements of the procedural legislation.;
In accordance with art.33 Part 1 of the Civil Procedure Code of the Republic of Kazakhstan, claims for rights to immovable property are filed at the location of these objects. This jurisdiction cannot be changed either by the parties or by the court. As a rule, there are also no disputes about jurisdiction between courts of general jurisdiction and the economic court in this category of cases.
A proper defendant in a relocation claim is a person who occupies residential or non-residential premises that prevent the plaintiff from accessing the premises. The operative part of court decisions must comply with the requirements of art.221 of the Civil Procedure Code of the Republic of Kazakhstan and art.24, paragraph 4 of the Law of the Republic of Kazakhstan "On State Registration of rights to immovable Property and transactions with it", they must contain a brief description of the area, rooms of residential and non-residential premises, in respect of which the procedure for use, as well as occupancy, is defined.
According to art.226 of the CPC RK, when awarding property in kind, the court indicates in the decision its individual specific characteristics. Therefore, in the decisions it is necessary to indicate the address of the object in which the plaintiff moves in.;
When distributing court costs, the courts are guided by the rules of Article 110 of the CPC and paragraph 18 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan "On Judicial decision", according to which, when adjudicating cases in which there are several defendants, court costs are collected from them in equity, and not in solidarity.
There are cases when, taking into account the views of the plaintiff's side on the waiver of court costs, the courts do not resolve the issue of reimbursement of state fees and representative expenses.
Most of the court decisions met the above requirements of the law. Some courts make mistakes and are negligent in the execution of judicial acts. A judicial act must have a clear structure, be stylistically and grammatically correct.
Competent presentation and execution of judicial acts is an indicator of a high level of professional culture of a judge and a manifestation of respect for participants in court proceedings. Despite the fact that errors and negligence in the design of a judicial act do not affect its legality and validity, they certainly worsen the perception of meaning and reduce the authority of the judiciary.
For example, the judge of the Kokshetau City Court of the Akmola region, considering Koishina D.'s claim to Sharipov E. for recognition as having lost the right to a share in a rented communal apartment, by a ruling dated 07/20/2015 returned Sharipov E.'s counterclaim to Koishina D. for moving in and exclusion from the list of family members, referring to art.157 of the CPC, without substantiating such a conclusion.
Also in case No. 2-4688/15 on the claim of Tulegenova Z. grammatical and stylistic errors were made to M. Tulegenova about moving into an apartment in the decision of the Aktobe city court dated 05/15/2015: "settlement, your own, Tulegenova, Aidarkhanovna, double, Isktulegenova, Aidarkhanovna apartment."
In the ruling of the Zhetysu District Court of Almaty dated 05.05.2015 on the claim of K. Akbasova to N. Pashaev for eviction and relocation, "novai" is indicated (judge K.E. Kasabulatov). So in case No. 2-1812 on the claim of P.M. Voyakivsky to N.O. Voyakivskaya for moving into an apartment in the decision dated 21.05.2015 The Temirtau city Court of the Karaganda region made mistakes in the chairman's own name.
From the analysis of judicial acts, it can be seen that one of the most common reasons for going to court was uncomplicated, changed family relationships.
The spouses appealed to the court due to the fact that they were forcibly evicted, forced to temporarily leave their living quarters for self-preservation, fear for their lives, loved ones, illnesses, and other reasons.
For example, in case No. 2-3232, the plaintiff Polenov E. filed a lawsuit against Polenova I. to move him into the house, arguing that he was a co-owner of the house.
By the decision of the Kokshetau City Court, this house was divided, however, due to the fact that Polenova AND. compensation for 1/3 of the share in the amount of 2,550,000 tenge has not been paid to him, he has not lost ownership of his share.
According to the materials of the enforcement proceedings, the plaintiff did not receive compensation for his share in this house, accordingly, he did not lose ownership of his share, the ownership right was registered with the plaintiff's registration authority.
The lawsuit was satisfied by the decision of the Kokshetau City Court of the Akmola region dated 05/14/2015.
When making the decision, the court was guided by art. 22 of the Law of the Republic of Kazakhstan "On Housing Relations", according to which the owner's family members, who moved into the dwelling belonging to him, have the right to use the dwelling on an equal basis with him, unless otherwise agreed upon when they moved in.
They have the right to move their minor children into the dwelling provided to them by the owner. Other family members are allowed to move in only with the consent of the owner.
In case of termination of family relations with the owner, former family members may use the dwelling as an employer without specifying the period of employment, unless otherwise provided by a written agreement with the owner of the dwelling.
At the same time, former family members are required to participate in the costs of housing maintenance and utility bills. Family members of the owner of the dwelling may demand the elimination of violations of their rights to use the dwelling from any persons, including the owner, on whose part these violations originate.
Adult members (former members) of the owner's family bear joint and several property liability for obligations arising from their use of the residential premises.
In the following example, the claim was also dismissed. Thus, the Balkhash city court of the Karaganda region considered a case on the claim of O. Zaboeva to R. Rakhpanova for moving into an apartment.
Zaboeva O. asked to move her into an apartment, justifying her claims by the fact that the defendant, R. Rakhpanova, had not fulfilled her obligations to pay the cost of the apartment, which meant that she, as the owner, had the right to own and use the apartment.
The court found that the owner of the disputed apartment is the plaintiff Zaboeva O.I.
According to the lease agreement for residential premises dated 04/01/2012, concluded between O.I. Zaboeva and R.K. Rakhpanova, O.I. Zaboeva, the landlord, rents a dwelling for living with subsequent purchase, consisting of two rooms, at 26 Mira Street, apartment 4, Balkhash, and the tenant, R.K. Rakhpanova, takes over the obligation to repair the apartment and buy the apartment by December 2014 for $ 20,000.
Meanwhile, the ruling of the Balkhash City Court of 27.03.2013, which entered into force, approved a settlement agreement between the parties Zaboeva O.I. and Rakhpanova R.K., under which Rakhpanova R.K. undertakes to pay Zaboeva O.I. and Zaboev S.V. the remaining amount of 2,240,000 tenge until 15.04.2013, and Zaboeva O.I., with the consent of Zaboev S.V., undertakes to transfer to Rakhpanova R.K., on the right of personal ownership, a two-room apartment at Balkhash St.Mira, 26 sq.4.
By the decision of the Balkhash city Court of 09/20/2013, which was left unchanged by the appellate judicial board of the Karaganda Regional Court on 12/03/2013, the claim of Rakhpanova R.K. to Zaboeva O.I., Zaboev S.V., Syroezhkin A.V. regarding the recognition of the sale agreement as invalid was satisfied, and the apartment purchase agreement concluded between Zaboeva O.I. and Syroezhkin A.V., declared invalid. The said judicial acts established that a contract had previously been concluded between O.I. Zaboeva and R.R. Rakhpanova. the lease agreement for the disputed apartment, the validity of which was determined until December 2014.
According to the settlement agreement, the lease agreement terminates only upon full payment of the money to Rakhpanova R. Zaboev and the transfer of the apartment to Rakhpanova R. Zaboev into personal ownership, that is, upon fulfillment of two conditions, none of which was fulfilled by the parties. It was also stated that the parties had not resolved the issues under the settlement agreement.
This settlement agreement has not been executed or canceled, thus, the lease agreement has not legally terminated, therefore O.I. Zaboeva did not have the right to sell the apartment to A.V. Syroezhkin, as a result of which this transaction was declared invalid by the court.
According to the settlement agreement, the lease agreement terminates only upon full payment of the money to Rakhpanova R. Zaboev and the transfer of the apartment to Rakhpanova R. Zaboev into personal ownership, that is, upon fulfillment of two conditions, none of which was fulfilled by the parties. It was also stated that the parties had not resolved the issues under the settlement agreement.
This settlement agreement has not been executed or canceled, thus, the lease agreement has not legally terminated, therefore O.I. Zaboeva did not have the right to sell the apartment to A.V. Syroezhkin, as a result of which this transaction was declared invalid by the court.
Meanwhile, the enforcement document by plaintiff O.I. Zaboeva was applied for execution on 07/01/2014 and the bailiff of the Balkhash territorial department of bailiffs initiated enforcement proceedings on 07/04/2014 and defendant R.K. Rakhpanova transferred 1,870,000 tenge to the account of the State Institution "Department for the Execution of Judicial Acts in the Karaganda region" on 10/30/2014.
Earlier, the defendant, R.K. Rakhpanova, transferred only 370,000 tenge to S. Zaboev's account from April 2013 to January 2014.
However, O. Zaboeva refused to receive the money, and therefore funds in the amount of 1,870,000 tenge were transferred to the Department's account, and subsequently, at the request of O. Zaboeva herself, they were transferred to the account of R. Rakhpanova. According to the decision of the bailiff dated 14.01.2015, the enforcement proceedings dated 04.07.2014 on recovery from R.K. Rakhpanova in favor of Zaboeva O. the amount of 2,240,000 tenge was terminated in accordance with paragraph 1, paragraph 1, Article 48 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs".
Therefore, the decision of the Balkhash City Court of 02/18/2015 correctly denied the claim in accordance with paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 "On certain issues of dispute resolution related to the protection of ownership of housing" dated 16.07.2007, by virtue of which the owner, who has made a deal to alienate the dwelling in the prescribed form, is not entitled to dispose of it later, since the specified dwelling is the subject of a fulfilled obligation, and the buyer, The person who has completed the state registration is recognized as its rightful owner (case No. 2-478).
Regulatory legal framework
When considering cases in this category, the courts were guided by the following legislative acts:
The Constitution of the Republic of Kazakhstan (Articles 6, 25, 26),
The Civil Code of the Republic of Kazakhstan,
The Civil Procedure Code of the Republic of Kazakhstan,
The Law of the Republic of Kazakhstan "On Housing Relations",
Resolution of the President of the Kazakh SSR dated 09/13/1991 No. 444 "On the Program of denationalization and privatization of State property in the Kazakh SSR for 1991-1992 (Stage I)" and the Regulation on the Coupon Mechanism for Privatization of State property in the Kazakh SSR (as amended by Resolutions of the President of the Republic of Kazakhstan dated 12/24/91 No. 549; dated 02/03/92 No. 88;dated 06/23/93, No. 1288),
The program of denationalization and privatization of state property of the Kazakh SSR for 1991-1992 (I-th stage),
Resolution of the President of the Republic of Kazakhstan dated 06/23/1993 N 1288 "On accelerating the privatization of public housing stock in the Republic of Kazakhstan and measures to ensure the processes of denationalization and privatization" (as amended by Resolution of the President of the Republic of Kazakhstan dated 11/30/93 N 1434), Decree of the President of the Republic of Kazakhstan "On mortgage of immovable property" dated 12/23/1995, after amendments and additions in 2007, which received the status of a Law,
The Law of the Republic of Kazakhstan "On State Registration of rights to immovable Property and transactions with it" dated July 26, 2007, the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property and Transactions with it" dated July 26, 2007,
Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated January 3, 1994 No. 2 "On approval of the Regulations on the Procedure for Privatization of Public Housing Stock Commissioned after January 1, 1992, normative Resolution of the Supreme Court No. 9 dated July 18, 1997 "On the practice of applying legislation on the privatization of residential premises by citizens", normative Resolution of the Supreme Court No. 10 dated July 9, 1999 "On some issues of the application of legislation on the right of ownership of housing."
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