Housing dispute lawyer
The conclusions of local courts on the satisfaction of the plaintiff's application do not meet the requirements of the law "on housing relations" the plaintiff M. appealed to the court with a statement of claim on the recognition of the write-off Order of the state institution "Department of employment and social protection of the city of Nur – Sultan" (hereinafter referred to as the The application was satisfied by the decision of the ESIL District Court of Nur-Sultan dated April 26, 2019. Part of the order of the Department No. 02-41/291 of December 29, 2018, protocol decision of the housing commission under the akimat of Nur-Sultan No. 19 of December 21, 2018 on the eviction of M. from the municipal housing fund at the expense of citizens in need of housing is recognized as illegal. The Housing Department of the akimat of Nur-Sultan is obliged to rebuild the applicant and restore the pre-criminal situation at the expense of citizens in need of housing provided from the state housing fund.
Housing dispute lawyer
By the decision of the judicial board for civil cases of the Nur-Sultan City Court dated September 17, 2019, the decision of the court of first instance was left unchanged. In the petition, the Department indicated that the courts violated the norms of material and procedural law during the consideration of the case, asked to cancel the judicial acts adopted in the case and leave the application unsatisfied in full. According to the case materials, the applicant M. On April 8, 2010, he filed an application with the Department for placing on the waiting list of those in need of housing from the state municipal housing fund in the category "oralman" with the indication of his wife R., son T. as family members. According to the protocol decision of the meeting of the housing commission under the mayor's Office of Astana, since April 8, 2010, the applicant has been placed on the waiting list in the category "oralman" for obtaining housing from the housing stock. Then, within the framework of its powers, the Department conducted inspections of citizens on the waiting list, and a request was sent to the Department of migration service of the Department of internal affairs of Astana dated November 2, 2018 (hereinafter referred to as the Department) in accordance with the outgoing letter No. 158-15/6500. According to the data obtained from the Department, M. has been a citizen of the Republic of Kazakhstan since 2009. Guided by the requirements of the laws of the Republic of Kazakhstan dated July 22, 1997 No. 94 (hereinafter – the law) and the Republic of Kazakhstan dated July 22, 2011 No. 477-IV (hereinafter – the special law)" on housing relations", on the basis of the protocol decision of the akimat of Astana dated December 21, 2018 No. 19 and the Order of the Department dated December 29, 2018 No. 02-41/291, the applicant M. citizens in need of housing provided from the municipal housing fund" I'm sorry, " he said. In addition, the protocol dated December 21, 2018 concluded that the applicant did not indicate any information about her husband, child, and the applicant did not submit documents that served as the basis for transfer to another category. In his application to the court, M. stated that his second son was born on December 28, 2010, he legally divorced his wife R. on April 6, 2017, he repeatedly applied to the Department to put his second son on the waiting list, transfer himself from the category of "oralman", to the category of "single mother" and arrange the queue for housing, but his application was dismissed.
Satisfying the claim of the applicant, local courts concluded that M. was legally placed on the waiting list for housing on April 8, 2010, and subsequently, due to a change in the status of his family, he belonged to the category of "single-parent family", he was illegally removed from the waiting list. After studying the materials of the civil case, the arguments of the petition, hearing the conclusion of the prosecutor on leaving the disputed judicial acts unchanged, the Cassation judicial board came to the following conclusions. The grounds for Cassation review of judicial acts that have entered into legal force, specified in the first part of Article 434 of this code, are a significant violation of the norms of material and procedural law provided for in Article 427 of this code, which led to the issuance of an illegal judicial act in accordance with the requirements of part five of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the code). At the same time, the judicial board is guided by the norm specified in part of Article 449 of the APC: "the court of Cassation instance has the right to go beyond the limits of a petition, submission or protest in the interests of legality and check in full the legality of the appealed, protested judicial act." When considering and resolving this civil dispute, local courts misappropriated the current housing relations and migration legislation and made an illegal decision on the case. In accordance with subparagraph 1) of Article 25 of the special law, the status of an oralman is terminated after the oralman acquires citizenship of the Republic of Kazakhstan. And in accordance with the requirements of subparagraph 1) of Article 73 of the law, citizens are subject to eviction from the state housing fund at the expense of those in need of housing, if the grounds for the provision of housing or housing rented by a local executive body from a private housing fund are eliminated. In accordance with the certificate of the Almaty District Department of internal affairs of Nur-Sultan dated April 23, 2019 No. 33-8-6-552 attached to the civil case, the applicant is M. He received citizenship of the Republic of Kazakhstan on September 29, 2009 and was documented on January 29, 2010 from identity card No. 024845644 to identity card No. 043558838 dated November 16, 2017. Therefore, taking into account the above-mentioned norms of legislation, the judicial board concluded that the applicant M. was illegally placed on the waiting list of persons in need of housing from the state housing fund on April 8, 2010, that is, he was not included in the category of citizens belonging to socially vulnerable segments of the population specified in paragraph 7 of Article 68 of the law at the time of
Despite these circumstances, representatives of the local executive body abused their official powers and illegally placed M. on the waiting list for obtaining housing. The conclusions of the courts of the first and appellate instance on the satisfaction of M.'s application do not meet the requirements of the legislation governing these disputed relations, and the local courts, the application of which did not apply the relevant material legislation, widely analyzed the legislation and allowed illegal decision-making. In addition, the court of first instance, along with the Order of the Department No. 02-41/291 dated December 29, 2018, partially recognized the protocol decision of the housing commission under the akimat of Nur-Sultan No. 19 dated December 21, 2018 as illegal. However, the protocol decision of this commission has not been evaluated from a legal point of view regarding whether the court is challenged or not in civil proceedings. On the basis of the above, judicial acts that are being challenged cannot be assessed as legitimate and justified.
Housing dispute lawyer
Due to the fact that local courts have made serious mistakes in the application of material legislation, these judicial acts are subject to cancellation. The judicial board considers that the circumstances of the civil dispute are fully, comprehensively established, but there are full legal grounds for making a new decision, without referring the case to a revision, taking into account the fact that errors were made in the application of material legislation. On the basis of the above, the Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan made a new decision to cancel the judicial acts of local courts and leave the statement of claim of M. in the case without satisfaction. The Cassation petition was granted.
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