Housing disputes related to appealing against the actions of state bodies to refuse to provide housing in the event of seizure or requisition of property for state needs or on other grounds 

There is an increase in the number of lawsuits, the reason is the increase in appeals to the court by applicants (socially vulnerable segments of the population, civil servants and employees of budgetary organizations) with demands to reinstate in the queue for housing, to cancel the decision to refuse to legalize a lease agreement, as well as military personnel and employees of law enforcement agencies, civil defense agencies who have obligations on mortgage loans, to challenge the refusal of housing commissions to make housing payments.

The latter is due to the introduction of amendments to the legislation that improves the situation of this category of persons, in terms of the use of housing payments to repay previously received mortgage loans.

This increase indicates the increased activity of citizens in using the provisions of the CAPP to protect violated rights.

In the Zhetisu region, the plaintiffs challenge the actions of the State Institution "Department of Housing Relations of Taldykorgan" of the Akimat of Taldykorgan. This situation is caused by the exclusion from the queue for housing from the State Housing Fund and the failure to provide decisions of the housing commission for the right to live in previously provided apartments in the periods from 2009 to 2020.

The courts establish illegal actions to remove from the register on various grounds, not to bring the issue of providing apartments when they are issued to the housing commission.

Whereas to this day, the plaintiffs as part of the family live in these apartments, bear the burden of housing maintenance, and pay for utilities.

To promptly resolve this issue, local courts have repeatedly held meetings with the participation of the city akim, his deputies, representatives of the regional akimat, the head of the Housing Inspection Department, the deputy prosecutor of the region and representatives of the city prosecutor's office, the DKNB and the Anti-Corruption Service of the region. 

It follows from the considered administrative cases that the disputes were not related to appealing against the actions of state bodies to refuse to provide housing in the event of seizure or requisition of property for state needs.

As the analysis showed, such claims were practically not received by the courts of the Republic, with the exception of the Karaganda region and the court of Astana.

For reference: by the decision of the  SIAC dated August 2, 2022, the claim of A., Sh. to the akim to recognize as illegal and cancel the decision of the akim dated March 01, 2022, on compulsion to provide housing was denied in full (No 6001-23-00-6ap/198). It follows from the circumstances of the case that since 1994, the plaintiffs, on the basis of a privatization agreement, owned an apartment in a multi-storey building,  which was demolished in 2010.

Believing that they were forcibly deprived of housing, they appealed to the defendant with a claim for housing from the state housing stock or payment of monetary compensation to replace the lost housing, which was denied to them.

 Dismissing the claim, the court concluded that the defendant had no grounds for providing the plaintiffs with housing from the state housing stock and paying the appropriate compensation.

Thus, according to subparagraph 5) of paragraph 1 of Article 29 of the Law on Housing Relations, forced (against the will of the owner) termination of ownership of housing is allowed in cases of demolition of an emergency apartment building.

Paragraph 4 of Article 29 of the Law on Housing Relations provides that in case of compulsory termination of the right of ownership to a dwelling place on the grounds provided for by subparagraph 5) of paragraph 1 of this Article, the owner shall be provided with a dwelling place in accordance with the article of this Law on Housing Relations.

The plaintiffs did not provide evidence that this house was in disrepair and was demolished by the local executive body as a result.

According to the legal cadastre, the plaintiffs' ownership of the disputed apartment was not forcibly terminated, while the disputed apartment was not recognized as having become communal property.

By the decision of the SCAD of the regional court, the court decision was left unchanged. By the resolution of the SCAD of the Supreme Court, the judicial acts of local courts were left unchanged.

           Another example from the practice of the court of Astana.

The plaintiff, having filed a lawsuit for coercion, asked to recognize the decision of the commission in terms of refusal to provide her with new housing as illegal and to oblige the defendant to provide housing, motivating the claim by the fact that she found herself in a difficult life situation in connection with resettlement from dilapidated housing.

For reference: by the  decision of the SIAC of Astana dated August 7, 2023, upheld by the SCAD of the Astana City Court dated November 8, 2023, V.'s claim against the akimat, the Commission for the Implementation of the Housing Renovation Project was satisfied:

- the decision of the Commission for the Implementation of the Housing Renovation Project dated 23.05.2023 No 1 regarding the refusal to provide new housing to V. was declared illegal;

From the circumstances of the case, it follows that V. has been living in the apartment since 10.02.2004 on the basis of the lease agreement of a residential building dated 10.02.2004, concluded with LLP (the landlord), according to which the plaintiff as a tenant was provided with the apartment for temporary use without documents with a monthly rent of 500 tenge.

The term of the contract is not specified.

By the Resolution of the Akimat dated 09.02.2023 No 510-211, a decision was made on the compulsory alienation by way of requisition of property.

By this resolution, the State Administration was instructed to send a written notice to the owners of residential and non-residential premises about the upcoming compulsory alienation of land plots and real estate and to resettle the owners of residential and non-residential premises.

Thus, emergency barrack-type housing construction with a land plot is subject to compulsory alienation for state needs by way of requisition.

According to the Astana branch of the State Corporation "Government for Citizens" NJSC, apartment No 3 in the dilapidated building belongs to LLP.

Earlier, since 1982, V. and her family lived in an apartment that was provided to the plaintiff's mother E. In 2010, the plaintiff's mother E. died, the ownership of the apartment was not registered in accordance with the established procedure.

By the decision of the maslikhat, the Program "Demolition of emergency and dilapidated residential buildings in the city of Astana for 2006-2008" was approved.

According to the program, investors, including LLPs, were attracted by offering plots that are attractive for development.

Thus, apartment No 3 was provided to V. by the investor Zh LLP in connection with the demolition of dilapidated housing construction.

By the resolution of the acting akim dated 05.12.2022. No 182-3628, the Commission for the Implementation of the Housing Renovation Project was established under the Akimat of Astana.

The main tasks of the commission are to make decisions on the provision of compensation in accordance with the legislation of the Republic of Kazakhstan to owners and tenants living in dilapidated houses subject to demolition as part of the implementation of the housing renovation project, as well as the conclusion of transfer and lease agreements for the provided apartments (non-residential premises).

By the decision of the commission, V. and the family members living together were denied the provision of new housing due to the failure of the owners to submit title documents for housing.

The courts, satisfying the claim, proceeded from the fact that the plaintiff has been living in the disputed apartment for more than 19 years, bears the burden of its maintenance, which is confirmed by the lease agreement of the residential building of 2004, as well as utility bills.

Moreover, it was established that the plaintiff openly uses this property, bears the burden of its maintenance, there have been no claims regarding her residence in the disputed apartment from the owner of the LLP throughout the entire time, the landlord has not demanded rent from the plaintiff since the conclusion of the contract.

The courts concluded that the above circumstances indicate the removal of the owner of the LLP apartment from the right of ownership without the intention to retain any rights to this housing, since the housing was left by the owner unattended and without fulfilling his obligations to maintain it.

The courts also took into account the fact that the disputed apartment was provided by the investor instead of the previously demolished housing construction, recognized as deteriorated.

At the same time, the plaintiff does not have any other housing on the right of ownership, due to his age (59 years) does not have the opportunity to independently solve his housing problem, belongs to persons in need of housing.

In view of the above circumstances, as well as the defendant's violation of the objectives and principles of administrative procedures provided for in Chapter 2 of the APC, the local courts satisfied the claim in full.

At present, this administrative case is under consideration by SCAD VS (No 6001-23-00-6ap/3405).

           A similar example: by the decision of the  SIAC of Astana dated August 23, 2023, upheld by the SCAD of the Astana City Court dated November 15, 2023, I.'s claim against the akimat, the Commission for the Implementation of the Housing Renovation Project on the imposition of the obligation to issue a favorable act on the provision of housing was satisfied:

- the akimat and the Commission for the implementation of the housing renovation project are obliged to issue a favorable act on the provision of housing to I.;

The issue of refunding the paid state duty from the local budget has been resolved.

For reference: according to the letter addressed to the chairman of the CCC, it follows that I. lives in the room at the place of work. The fact that I. has lived in the room since the specified time is not disputed by the defendant. According to the information of the electronic portal "e-gov", I. has been registered at this address since August 28, 1998.  transferred to the Department of Housing for privatization.

The balance holder at the time of the transfer was a JSC. According to the Concept for the Development of Housing and Communal Infrastructure until 2026, approved by the Decree of the Government of the Republic of Kazakhstan No736 dated 23.09.2022, the Resolution of the Akimat of Astana, emergency housing construction with a land plot is subject to compulsory alienation by way of requisition.

           By the decision of the commission, I. and the family members living together (son M., born in 1993) were denied new housing due to the failure of the owners to submit title documents. On 06.06.2023, the plaintiff was sent a notice of vacating the apartment.

The plaintiff, disagreeing with the eviction, asked the court to oblige the defendant to provide housing, motivating the claim by the fact that in 1993 she was provided with a room at her place of work, since that time she has been permanently living and bearing the burden of its maintenance.

However, due to the lack of necessary documents, she could not register the room in her name, this is her only housing, in connection with the recognition of the dormitory as deteriorated, the plaintiff is evicted without providing other housing.

The courts, satisfying I.'s claim, proceeded from the fact that I. has been living in the disputed room for more than 19 years, bears the burden of its maintenance, which is confirmed by certificates from maintenance services, receipts for payment of utilities.

In addition, the plaintiff does not have another housing (room) on the right of ownership, being an old-age pensioner (66 years old), cannot independently solve his housing problem, therefore, he belongs to persons in need of housing.

In view of the above circumstances, as well as the defendant's violation of the objectives and principles of administrative procedures provided for in Chapter 2 of the APC, the local courts satisfied the claim in full.

Currently, this administrative case is under consideration by SCAD VS (No 6001-24-00-6ap/9). Another example: by the decision of the SIAC of Astana dated August 9, 2023, upheld by the decision of the SCAD of the court of Astana dated November 1, 2023, the claim of L. against the akimat,

The Commission for the Implementation of the Housing Renovation Project is satisfied with:

the decision of the Commission for the Implementation of the Housing Renovation Project dated May 23, 2023 No 1 in terms of the refusal to provide housing to L. was declared illegal;

the akimat and the Commission for the Implementation of the Housing Renovation Project are obliged to provide housing to L.

For reference: it was established that the house was recognized as emergency by the decree of the akimat and is subject to compulsory alienation by way of requisition.

For the purpose of making decisions on the provision of compensation to owners and tenants living in dilapidated houses subject to demolition as part of the implementation of the housing renovation project, a Commission was established.

By the decision of the Commission dated 23.05.2023, the plaintiff was refused to provide new housing due to the lack of title documents and the presence of a decision to refuse legalization dated 01.08.2007.  The contested decision was made without taking into account the objectives and principles of administrative procedures due to the following.

From the answers submitted to the court's request, the Migration Service Department of the Police Department, the data of the population documentation database of the Ministry of Internal Affairs reliably established the plaintiff's residence in the disputed apartment since April 22, 1982, which is registered at this address to the present day.

The plaintiff openly uses this property, she did not receive any claims from the owner of the property represented by the akimat regarding her residence in the disputed apartment, she did not receive an eviction claim throughout the entire time.

Part 6 of Article 84 of the CAPP provides for an exhaustive list of cases in which a participant in an administrative procedure loses the right to refer to the principle of protection of the right to trust.

In the case under consideration, such grounds did not occur. In addition, the court of first instance revealed a discrepancy in the decision made on the plaintiff's application for the legalization of property.

In 2007, the plaintiff filed two applications for the legalization of the apartment and the land plot.

By the decision of the commission for legalization of the land plot, it was decided to refuse legalization. In terms of the apartment, according to the archive's response dated 01/19/2023, at the request of the plaintiff No12872, a decision was made on the apartment "paragraph 4 of Article 11 of the Law".

Paragraph 4 of Article 11 of the Law stipulates that, subject to compliance with the requirements established by this Law, the commission shall make a decision on the legalization of real estate.

Thus, there are contradictions between the decision of the legalization commission regarding the apartment, reflected in the protocol, and the decision issued to the plaintiff on the circumstances of legalization, confirmed by the documents attached to the case file.

In view of the above circumstances, the courts concluded that the absence of title documents, confirming the fact of the plaintiff's residence in the demolished housing construction for more than 40 years, is not a ground for refusing to provide housing to the plaintiff, since the state, represented by state bodies, is obliged to take measures to provide housing for citizens classified as socially vulnerable segments of the population, who have no other opportunity to solve housing issues.

At the same time, the court noted that the defendants have administrative discretion in resolving issues on the provision of housing by concluding a lease agreement for the apartments provided.

Currently, the administrative case is under consideration by SCAD VS (No 6001-23-00-6ap/3354).

Another case from the practice of the SIAC of Astana on claims for declaring illegal the refusal to conclude a lease agreement and compulsion to conclude a lease agreement.

For reference: by the  decision of the SIAC of Astana dated April 21, 2022, T.'s claim against the State Administration to recognize the refusal to conclude a lease agreement as illegal and the compulsion to conclude a lease agreement was satisfied.

By the decision of the appellate instance dated July 14, 2022, the decision was left unchanged.

The court found that the plaintiff previously lived at the address and bore the burden of maintaining this room.

The above-mentioned residential building was recognized as emergency by the protocol of the interdepartmental commission and included in the list of emergency and dilapidated multi-storey residential buildings in Astana.

The minutes of the meeting of the housing commission refused to provide the plaintiff with new housing due to the lack of title documents for the occupied dilapidated housing. On 09.03.2021, an apartment was provided for the use of the plaintiff.

The court found that the decision of the Baikonyr District Court of Astana dated August 05, 2021 established the fact of the existence of a warrant to provide T. with a room in 1974 in a house recognized as deteriorated. On October 19, 2021, this decision of the Judicial Chamber for Civil Cases of the Court of Astana was canceled with the adoption of a new decision to dismiss the claim.

Subsequently, the Judicial Chamber for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated December 6, 2021 refused to transfer the plaintiff's petition for review of the decision of the Judicial Chamber for Civil Cases of the Astana Court dated October 19, 2021 in cassation.

           On December 27, 2021, the plaintiff applied to the defendant with a statement to conclude a lease agreement. On January 11, 2022, the defendant refused to conclude a lease agreement due to the lack of grounds.

When satisfying the claim, the court took into account the following circumstance. The Judicial Chamber for Civil Cases of the Court of Astana in its resolution of October 19, 2021 indicated that taking into account the evidence of the plaintiff's long-term residence in the demolished dormitory and the absence of a dispute over the fact of her residence, the plaintiff has the right to choose another method of protection by applying to the local executive body with an application to conclude a lease agreement.

In case of refusal to satisfy the application, the plaintiff has the right to exercise the right to appeal against the actions of the authorized body in accordance with the established procedure.

This resolution considered the fact of the existence of a warrant, and not the fact of legal long-term residence.

In accordance with subparagraph 5) of Article 68 of the Law, the plaintiff is an old-age pensioner, belongs to the category of citizens belonging to socially vulnerable segments of the population.

 In order to restore the violated rights of the plaintiff, the court considered it necessary to impose on the defendant the obligation to renew the lease agreement with the plaintiff for the disputed room, since the refusal to conclude a lease agreement with the plaintiff violates the principles provided for by administrative legislation.

By the resolution of the cassation instance of the Supreme Court of the Republic of Kazakhstan dated March 30, 2023, the judicial acts of local courts were upheld (No 6001-22-00-6ap/1653). 

Procedure for Proceedings in the Case

In accordance with the provisions of Articles 146 and 148 of the Code of Administrative Procedure, an administrative case is considered and resolved within a reasonable time, but not more than three months from the date of filing a claim.

The trial is carried out according to the rules of the Civil Procedure Code, with the exception of the features established by Article 147 of the APC.

The court, with the consent of the parties, has the right to consider an administrative case in a written 13th hearing within a reasonable time, but not more than three months from the date of filing the claim.

After the registration of the claim, the court, at the stage of preliminary hearing and trial, within the framework of the active role of the court, provides assistance in the formation of the correct legal position of the plaintiffs.

In general, the courts of the republic considered cases of this category in compliance with the above requirements.

At the same time, the analysis revealed a gross violation of the procedural law in the consideration of disputes of this category in the following case.

For reference: E. filed a lawsuit against the Russian State University (No 2794-22-00-4/654). By the decision of the SIAC WKO dated November 7, 2022, the claim was satisfied, the defendant was obliged to adopt a favorable act on the report dated August 4, 2022.

By the resolution of the SCAD WKO dated January 31, 2023, the decision of the court of first instance was left unchanged.

By the resolution of the SCAD of the Supreme Court dated November 2, 2023, the decision of the SCAD WKO was canceled, the case was sent to the NSR in the regional court in a different composition of the court.

It was established that in the court of appeal the said case concerning housing payments was considered by the judge of the regional court in written proceedings alone, i.e. in an illegal composition, which was the basis for canceling the decision with sending the case for a new trial in a different composition of judges, without discussing the correctness of the judicial acts adopted by local courts.

The judge of the appellate instance did not take into account the requirements of Part 4 of Article 24 of the APC, by virtue of which administrative cases in the court of appeal are considered by a collegial composition in an odd number (at least three) of judges, one of whom is the presiding judge.

A single judge considers private complaints against rulings made by the courts. Thus, the procedure for consideration of administrative cases at the stage of the appellate instance, including in terms of the composition of the court, is regulated by the APC, which excludes the sole consideration of appeals against decisions of the courts of first instance. 

Jurisdiction

           When considering cases on disputes arising from housing legal relations, compliance with the rules of jurisdiction, the filing of a claim by persons having the right of claim, and the correct determination of the subject of the claim are of particular importance for the resolution of disputes.

Jurisdiction is determined according to the rules of Articles 102, 103 and 106 of the APC. At the request of the plaintiff, cases referred to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the place of residence of the plaintiff, with the exception of cases under the jurisdiction of specialized district and equivalent administrative courts located within the boundaries of cities of republican significance and the capital, regional centers.

By virtue of Article 103 of the Code of Administrative Procedure, military courts hear administrative cases on the claims of servicemen of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, citizens undergoing military training, if the defendant is a military administration body, a military unit, with the exception of cases under the jurisdiction of other specialized courts.

If a military court has not been formed on the territory of the relevant administrative-territorial unit, administrative cases referred to its jurisdiction shall be considered by specialized district and equivalent administrative courts in accordance with the procedure established by this Code.

           At the same time, if there is a military court in the region, questions arise about the correct determination of the jurisdiction of cases on claims for the appointment of the JU.

Thus, TGVs are appointed to active military personnel and the jurisdiction of disputes on them is attributed to the competence of military courts. While ERVs are appointed upon dismissal of a serviceman and in connection with the loss of the status of one of the parties to the dispute, special jurisdiction no longer applies.

Based on the stated practice of the courts, we note that the correct determination of jurisdiction is important by virtue of the constitutional norm and its observance in administrative cases must be ensured in accordance with Articles 102, 103 of the APC. 

Circle of persons participating in the case

According to Article 26 of the APC, the parties to the administrative process are the plaintiff, the defendant, the interested person and the prosecutor.

At the same time, in housing disputes, by virtue of the provisions of Article 31 of the APC, the prosecutor, as a rule, does not participate. The circle of persons participating in the case is determined by the plaintiff when filing a claim with the court. Persons who have the right to file a claim with the court are specified in Articles 67 - 68 of the Law.

In the preliminary hearing, the court shall find out the circle of persons whose rights, freedoms or legitimate interests may be affected by an administrative act, administrative action (inaction) and subsequently be involved as interested persons in accordance with Article 14 23 of the APC.

The analysis showed that in the claims of military personnel, law enforcement officers and civil defense officers related to the payment of TGV and EZV, the defendants are the relevant territorial administrative body, under which the housing commissions that made the decisions were created (military units, institutions of the Penal Correction System, DP, line departments, security services, etc.). If necessary, a higher state body (Committee, Ministry) is involved as an interested person.

 In the claims of citizens against the, the akim of the administrative-territorial unit and/or the housing and communal services department, the housing relations department are involved as a defendant.

In accordance with subparagraph 12) of paragraph 1 of Article 31 of the Law "On Local State Administration and Self-Government in the Republic of Kazakhstan", the district (city of regional significance) akimat in accordance with the legislation of the Republic of Kazakhstan organizes the construction of housing of the communal housing stock and its distribution.

By virtue of paragraph 1 of Article 77 of the Law, a dwelling place from the communal housing stock or a dwelling place rented by a local executive body in a private housing stock shall be provided by decision of the local executive body at the place of residence of the applicant on the basis of a decision of the housing commission.

Housing commissions of LEBs, operating on a permanent basis, are created under LEBs.

The authorized body is the that provides housing.

It is necessary in each specific case to correctly determine the defendants, based on the subject and grounds of the plaintiff's claim, the defendant's objections and the applicable laws, legal status, and powers of authorized bodies.

When filing a claim against an improper defendant to the court in accordance with Articles 16, 116 of the APC, in order to avoid red tape in the consideration of the dispute, it is necessary to explain to the plaintiff the procedure for replacing an improper defendant with a proper one in accordance with Article 29 of the APC.

Based on the practice of local courts, it follows that there is no need to involve members of housing commissions as defendants.

The decision to satisfy the claim is executed by the administrative body, akim or the Department of Housing and Public Utilities, there are no difficulties and problematic issues with the execution of decisions that have entered into force. 

Conciliation procedures

           The CAPP provides for the possibility of conciliation procedures in disputes arising from public law relations, however, reconciliation of the parties is allowed if the defendant has administrative discretion.

Such a provision of the norms of legislation is justified due to the fact that the elimination of violations of the rights of a citizen, a legal entity is possible by canceling the appealed act, terminating any action by the state body or official himself.

           On the basis of mutual concessions, the parties may fully or partially terminate an administrative case by entering into an agreement on conciliation, mediation or settlement of the dispute in a participatory procedure at all stages (stages) of the administrative process until the court is removed to render a decision.

The court's adoption of measures to reconcile the parties and their assistance in resolving the dispute at all stages of the process follows from the tasks of administrative proceedings. Taking a neutral position regarding the claims of the parties, the court explains to the parties their right to conduct conciliation procedures and the legal consequences of concluding such agreements.

The analysis showed that the most common type of completed cases of the analyzed category in connection with reconciliation are cases in which the parties have entered into mediation agreements.

           In general, rulings on the approval of conciliation and mediation agreements are executed by the defendants voluntarily within the established time limits. There are isolated facts of the court imposing monetary penalties on defendants for failure to comply with a court ruling in accordance with Part 5 of Article 127 of the APC.

           A significant number of cases are cases in which the illegality of actions is established by the court or recognized by the defendant himself. The data indicate that the defendants misapplied the norms of housing legislation and violated the prohibition of abuse of formal requirements.

At the same time, the application of the principles of the APC (active role of the court, fairness, proportionality), measures of procedural coercion (monetary penalty) and conciliation procedures within the framework of administrative proceedings has significantly improved the quality of consideration of cases in this category.

Thus, the implementation of the principle of an active role contributes to the resolution of the dispute by the court or the withdrawal of the claim due to the settlement of the dispute amicably or clarification of the prospects for consideration of the case. For example, the defendant himself cancels the disputed act or performs actions due to which the existence of a dispute disappears. 

Return of claims.

Of those returned on other grounds, the largest number are refunds on the basis provided for:

- subparagraph 11) of part two of Article 138 of the APC - the case is not subject to consideration in administrative proceedings.

- subparagraph 15) of part two of Article 138 of the APC - the court refused to restore the missed deadline for filing a claim.

- subparagraph 12) of part two of Article 138 of the APC - there is a court decision or court ruling on the approval of the agreement that has entered into legal force, issued on a dispute between the same parties, on the same subject and on the same grounds.

Returning the claim, the courts concluded that there were no public law relations between the parties, the defendant did not issue administrative acts in relation to the plaintiffs. 

Evidence and proof

           Despite the fact that, by virtue of Article 129 of the CAPP, the burden of proof lies with the administrative body in claims for challenge, the body/housing commission has only the data that is in the information exchange systems between government agencies.

When making decisions, the, as a rule, does not require additional documents from those on the waiting list.

At the same time, the nature of proof in housing disputes requires the provision of evidence, information about which is protected by law or can only be submitted by the plaintiff by virtue of its content (mortgage agreements, bank certificates, certificates from the place of work, study, service records) or are of a personal nature (about the composition of the family).

Thus, as evidence: a) in claims to challenge the decisions of the housing commissions of the LEB on exclusion from the waiting list, the plaintiffs can submit - documents on the assignment to the category of waiting lists (service records from personnel management departments, certificates from the place of work of civil servants, certificates of disability, birth certificates for all children, divorce certificates, certificates of registered rights to property for all family members, etc.),  As evidence of residence (non-departure), the plaintiffs submit certificates from the place of study, from the place of work, witness testimonies, reports (characteristics) of district police inspectors.

The courts are forced to request the history of registration at the place of residence from the migration police, since the PSO PSO database contains only current data (the history of the dates of permanent/temporary registration/discharge in the PSO SIO), such data are not provided in personal accounts in Еgov web applications.

           Defendants - decisions on registration, decisions of the housing commission on removal from the waiting list, information from the IS kezekte.kz, case materials of those on the waiting list;

b) the following documents shall be submitted for claims to challenge the decisions of housing commissions in recognition as needing housing and payment of UZHV, TGV:

plaintiffs - lease agreements with the right to buy, mortgage agreements, certificates of the presence/absence of property,

defendants - decisions of the housing commission on registration of those in need, on removal from the register, on refusal to apply for the UZHV - TGV, certificates of the presence/absence of property, orders for employment, service records, orders for dismissal in connection with the expiration of the contract (etc.), case materials of recipients of housing payments - on the waiting list.

According to Part 1 of Article 129 of the APC, the plaintiff is obliged to participate in the collection of evidence in accordance with his capabilities.

Regardless of the type of claim filed, the plaintiff is obliged to prove the time when he became aware of the violation of his rights, freedoms and legitimate interests, as well as the amount of losses incurred.

Often, a person registered for housing or his/her representative is not notified by the authorized body of removal from the waiting list or transfer to the queue in another category, while paragraph 3 of Article 73 of the Law on deregistration of interested persons is notified in writing within ten days after the decision is made, indicating the grounds for deregistration.

In this regard, when the court considers the issue of restoring the missed deadline for filing a claim as evidence, the defendant is obliged to provide a written notice of the plaintiff about removal from the queue or transfer to another category, with a note of delivery and/or delivery to the interested person.

The absence of such evidence is the basis for recognizing the delay in filing a claim with the court as valid. 

Time limits for filing a claim (practice of restoring time limits)

The terms for filing a claim are provided for by Chapter 20 of the APC, in particular, they are regulated by Article 136 of the APC.

As a general rule, the deadline for filing a claim missed for a good reason can be restored by the court according to the rules of the Civil Procedure Code.

The reasons for missing the deadlines for filing a claim with the court and their importance for the correct resolution of the administrative case are clarified by the court at the preliminary hearing.

Failure to meet the deadline for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed deadline for filing a claim with the court, are grounds for returning the claim.

At the same time, it should be taken into account that by virtue of Part 5 of Article 136 of the APC, a person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a claim with the court within a month from the date when the person learned or could have learned about the adoption of the administrative act, but no later than one year from the date of its adoption.

In practice, there are cases when the court, applying this rule, does not take into account the factual circumstances of the case.

For reference: T. filed a lawsuit against GU-1, GU-2 to recognize the following as illegal:

1) acceptance of the apartment on the balance sheet of the GU-1,

2) Resolution of the akim on the acceptance of property in part of the apartment on the balance sheet.

By the decision of the SIAC dated June 8, 2023, the restoration of the deadline for filing a claim was denied, the claim was returned in accordance with subparagraph 15) of part two of Article 138 of the APC.

By the decision of the SCAD of the Mangistau region dated July 27, 2023, the definition was left unchanged.

On January 24, 2024, the SCAD Supreme Court, reversing the ruling of the lower courts and sending the case for a new trial to the court of first instance, indicated that the court of first instance, refusing to restore the deadline for filing a claim, concluded that the claim was filed more than one year after the issuance of the contested resolution, that is, the plaintiff missed the one-year period for filing a claim with the court,  which, by virtue of part five of Article 136 of the APC, is preclusive and is not subject to restoration (No6001-23-00-6ap/2368).

However, the court did not take into account the plaintiff's advanced age (78 years), being in rehabilitation after a hip fracture, that is, the plaintiff presented sufficient evidence indicating the validity of the reasons for missing the deadline for filing a claim with the court, and by virtue of the norms of the current legislation, the missed deadline by the plaintiff was subject to restoration. 

Abbreviations used:

- APPC – Administrative Procedural Code of the Republic of Kazakhstan

- CPC – Civil Procedure Code of the Republic of Kazakhstan

- Civil Code of the Republic of Kazakhstan

- NP VS – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan

- IS – Information System

- SCAD of the Supreme Court – Judicial Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan

- SCAD or collegium – judicial chamber for administrative cases

- SIAS – Specialized Inter-District Administrative Court  of the - Ministry of Internal Affairs of the Republic of Kazakhstan – Ministry of Internal Affairs of the Republic of Kazakhstan

- Ministry of Defense of the Republic of Kazakhstan

- KNB – National Security Committee of the Republic of Kazakhstan

- GP – General Prosecutor's Office of the Republic of Kazakhstan

- Department of Emergency Situations

- SGO – Special State Bodies

- DP – Police Department

- TGV - current housing payments

- EZHV - Lump-sum Housing Payments

- GZHF - State Housing Fund

- – Local Executive Bodies 

The main regulatory legal acts governing housing disputes are:

- Constitution of the Republic of Kazakhstan;

- APPK;

- LEDGER; - GCA;

- the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law on Housing Relations);

- the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law on State Property);

- The Law of the Republic of Kazakhstan "On Military Service and the Status of Servicemen" (hereinafter referred to as the Law on Military Service);

- Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as the Law on Law Enforcement Agencies);

- Law of the Republic of Kazakhstan "On Legal Acts" (hereinafter referred to as the Law on Legal Acts);

- NP SC "On Judicial Practice of Application of Legislation on Privatization of Residential Premises from the State Housing Fund by Citizens" dated July 18, 1997 No9;

as well as by-laws:

- Rules for the provision of service housing for military personnel, calculation of the amount, appointment, recalculation, implementation, termination, suspension and resumption of housing payments, approved by the Decree of the Government of the Republic of Kazakhstan No49 dated February 12, 2018 (hereinafter referred to as Rules No49);

- Rules for the implementation of monetary compensation, approved by the Decree of the Government of the Republic of Kazakhstan No50 dated February 12, 2018 (hereinafter referred to as Rules No50);

- Rules for Provision of Service Housing for Employees of Internal Affairs Bodies, Calculation of the Amount, Appointment, Recalculation, Implementation, Termination, Suspension and Resumption of Housing Payments, as well as Categories of Positions of Employees of Internal Affairs Bodies Entitled to Receive Housing Payments, approved by Decree of the Government of the Republic of Kazakhstan dated August 5, 2021 No524 (hereinafter referred to as Rules No524);

- Rules for Privatization of Housing from the State Housing Fund, approved by the Decree of the Government of the Republic of Kazakhstan dated July 2, 2013 No673 (hereinafter referred to as Rules No673);

- Rules for the provision of the public service "Registration and Priority, as well as Adoption by Local Executive Bodies of a Decision on the Provision of Housing to Citizens in Need of Housing from the State Housing Fund or Housing Leased by a Local Executive Body in the Private Housing Fund", approved by Order of the Acting Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated August 13, 2021 No441;

- Rules for the Transfer of State Property Assigned to State Legal Entities from One Type of State Property to Another, approved by Order of the Minister of National Economy of the Republic of Kazakhstan dated May 26, 2023 No85;

- Rules for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing leased by a local executive body in the private housing stock, approved by Order of the Minister of Industry and Construction of the Republic of Kazakhstan dated December 27, 2023 No168.

If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by the Law on Housing Relations, the rules of the international treaty shall apply.

According to sections 10 and 12 of the Law on Legal Acts, codes have more legal force than laws; In the presence of contradictions in the norms of regulatory legal acts of different levels, the norms of the act of a higher level shall prevail.

According to the general rule provided for by Article 4 of the Civil Code, Article 43 of the Law on Legal Acts, regulatory legal acts are applied to relations that arose after their enactment. 

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