Housing disputes related to the privatization of housing, with the issues of recognition as needing housing for the provision of service housing

 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. 

According to paragraph 9 of Article 13 of the Law, citizens have the right to privatize only one dwelling place from the State Housing Fund in the territory of the Republic of Kazakhstan.

Practice in these categories of disputes is different. For example, the decision and resolution of the SCAD of the Pavlodar Regional Court on the claim of I.Sh. against the Akim, the State Administration on the recognition of illegal and cancellation of the resolution of the Akimat of Pavlodar in terms of paragraph 18, the recognition of the decision of the housing commission in terms of refusal to privatize the apartment and the elimination of violations by concluding a housing privatization agreement (No 6001-23-00-6ap/670) were changed by the resolution of the SCAD of the Supreme Court.

The claim is motivated by the fact that he was illegally denied privatization of the housing he occupies, which is not related to the departmental housing stock. By the decision of the SIAS of the Pavlodar region dated August 31, 2022, the claim was partially satisfied: the resolution of the akimat dated November 5, 2020 No2168\7 was declared illegal and canceled; The decision of the housing commission on the distribution of housing in terms of refusal to privatize the apartment was declared illegal.

The rest of the claim was dismissed.

For reference: It follows from the case materials that by the appealed resolution of the akim dated November 5, 2020 No2168/7 "On Issues of Communal Property", communal property, including the disputed apartment, was transferred to the departmental housing fund of the State Administration.

           On 09.02.2021, I. applied to the department of the State Institution with an application for the provision of housing from the departmental housing stock due to the lack of his own housing in Pavlodar.

By the protocol decision of the Commission for the Distribution of Housing from the Departmental Housing Fund (hereinafter referred to as the Commission) dated 10.02.2021. the plaintiff was provided with departmental housing for the period of performance of official duties in the Department without the right to privatization.

On the same day, an apartment lease agreement was concluded between the State Institution and the plaintiff. On 03.03.2022, the plaintiff filed an application for the privatization of the above apartment. By the decision of the Commission dated 21.06.2022. The plaintiff was denied the application due to the fact that the apartment belongs to the departmental housing stock.

Disagreeing with the refusal, the plaintiff went to court. Local courts, partially satisfying the claim, motivated their conclusions by the fact that the powers of the State Institution include the function of distributing housing from the communal housing stock, and the apartment provided to the plaintiff is not departmental housing, but belongs to service housing.

Based on the absence of the plaintiff's other housing, departmental housing on the balance sheet of the employer, the contested resolution on the transfer of the disputed apartment to the departmental housing fund is illegal.

The judicial panel did not agree with these conclusions of the local courts due to the following. In accordance with Part 4 of Article 155 of the APC, the court shall dismiss the claim if, during its consideration, it establishes that the disputed action (inaction) has been committed, the decision was made in accordance with the competence and legislation of the Republic of Kazakhstan.

Paragraphs 1-5) of Article 2 of the Law include departmental housing stock that is on the balance sheet of state institutions, intended for provision to civil servants appointed to a position by rotation, by decision of the housing commission, for residence for the period of performance of official duties without the right of further privatization.

In accordance with paragraph 3-2 of Article 67 of the Law, housing from the departmental housing stock is provided for use to civil servants in need of housing in a given locality, appointed to a position by rotation, for the period of performance of their official duties.

According to subparagraph 8-1) of paragraph 7 of Article 13 of the Law, housing provided from the departmental housing stock to civil servants appointed to a position on a rotational basis for the period of performance of their official duties may not be privatized.

From the plaintiff's application for the provision of an apartment, the protocol decision of the Commission dated 02/10/2021. it follows that the apartment disputed by the plaintiff was provided to him as a civil servant appointed to the position on a rotational basis for the period of performance of the official duties of the head of the Department.

It was established in the case and the plaintiff does not dispute that there were no other grounds for providing the latter with official housing from the state housing fund. In this regard, the conclusions of the local courts that the disputed apartment is not departmental housing and is subject to privatization are erroneous, contrary to the circumstances of the case and the requirements of the law.

The fact that the balance holder of the disputed apartment was the State Administration, and not the Department, does not deprive it of the status of departmental service housing that is not subject to privatization. Exercising the powers to ensure the preservation and proper operation of the housing stock, provided for by 10-3 of the Law, the akim, transferring the disputed apartment to the balance of the State Administration, acted within his powers and administrative competence.

In accordance with Part 4 of Article 6 of the APC, violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, entails the recognition of administrative acts, administrative actions (inaction) as illegal, as well as the cancellation of the issued judicial acts.

Based on the foregoing, the judicial panel, guided by the principles and objectives of administrative proceedings, came to the conclusion that the contested judicial acts were changed in terms of satisfying the claim, with the issuance of a new decision to dismiss the plaintiff's claims.

           Another example is related to a housing dispute arising from a privatization agreement. For reference: M. applied to the court to the KSU to recognize as illegal the decision of the housing commission to refuse to privatize the occupied housing and to impose the obligation to give permission to privatize the occupied housing (No 6001-22-00- 6ap/1433).

By the decision of the Nur-Sultan SIAC, the claim was dismissed, which was left unchanged by the decision of the appeal instance of the Nur-Sultan SCAD without change.

By the Resolution of the Court of Cassation dated 12.01.2023. Judicial acts of local courts were canceled with a new decision to satisfy the claim. On 01.10.2021, on the basis of a lease (lease) agreement for service housing, the plaintiff M. and members of his family from the state housing stock were provided with a 3-room apartment No 37 with a total area of 95.3 sq.m., located in the city of Nur-Sultan (hereinafter referred to as the disputed apartment), which, on the basis of the order dated 06.08.2020, is on the basis of the right of operational management of KSU.

On 20.10.2021, the plaintiff filed an application with the Department of Housing and Housing Inspection for the privatization of the disputed apartment free of charge, attaching statements from all members of his family on the refusal to participate in the privatization of the apartment and the share of ownership in it after its privatization, which was redirected to the Housing Fund for consideration.

On 28.10.2021, by the decision of the housing commission, the plaintiff's privatization of the housing was denied, because the tenant's family members specified in the lease agreement had previously used their right to privatize housing from the State Housing Fund.

Citizens of the Republic of Kazakhstan have the right to privatize only one dwelling place from the State Housing Fund in the territory of the Republic of Kazakhstan. Disagreeing with the above refusal, the plaintiff filed this claim with the court.

The courts, dismissing the claim, recognized the appealed refusal to privatize the apartment as justified, since the members of the plaintiff's family, namely the wife and eldest son, had previously exercised their right to privatize the housing from the State Housing Fund by privatizing a 1-room apartment in Almaty.

The courts considered that the plaintiff had no right to demand its privatization. However, these conclusions of the local courts do not comply with the circumstances established in the case and the requirements of the law.

The decision of the housing commission to refuse to give permission for the privatization of the occupied housing is illegal, violating the rights and legitimate interests of the plaintiff, who has not previously exercised the right to privatize the housing from the State Housing Fund.

 It was established that at the time of the privatization of the apartment, the plaintiff was in a registered marriage with A., they were dependent on two minor children.

According to paragraph 4 of Article 101 of the Law, military personnel, employees of special state bodies, as well as persons dismissed from military service or from service in special state bodies upon reaching the age limit for service, for health reasons or in connection with staff reduction, who have a length of service of twenty years or more in calendar terms, have the right to privatize the housing they occupy, equated to service.  gratis.

In accordance with Article 75 § 1 of the Act, as amended as of 7 August 2000, a dwelling place from the State housing stock is provided in the amount of not less than 50 square metres and not more than 18 square metres of usable space per person, but not less than a one-room apartment.

By virtue of Article 2 of the Law, the usable area of a dwelling place (apartment) is the sum of the residential and non-residential areas of the dwelling place. In accordance with paragraph 2 of Article 13 of the Law, privatized housing is transferred to the common joint ownership of the tenant and all family members permanently residing with him, including temporarily absent ones, unless otherwise provided by the agreement between them.

In this regard, the plaintiff's explanations deserve attention that he and his second son were not included in the privatization agreement of the apartment - which is actually common joint property, only due to the discrepancy between the useful area of the dwelling and the composition of a family of 4 people.

If all family members were included in the privatization agreement, the size of the share of each would be 25%.

In view of the above, the grounds for refusing to privatize the plaintiff's apartment are formal in nature and restrict him in exercising the right guaranteed by law.

Judicial acts of local courts contradict the main goals and objectives, the principles of administrative proceedings, and therefore they were canceled with the issuance of a new decision to satisfy the claim in full.

Another example: by a  court decision of January 19, 2022, Zh.'s claim against the Akim, the Department, the Department to recognize as illegal the actions and decision of the housing commission on the issue of refusing to satisfy the application for gratuitous privatization of the apartment occupied by him, on the obligation to eliminate the violations committed, was dismissed.

By the decision of the SCAD of the Aktobe Regional Court dated April 19, 2022, the decision of the court of first instance was left unchanged.

By the resolution of the SCAD of the Supreme Court dated November 22, 2022, these judicial acts were canceled with the adoption of a new decision to satisfy the claim.

It was decided to recognize the actions of the akim, the Department, the Department as illegal and to cancel the decision of the housing commission under the akimat of Aktobe on the refusal of Zh. to privatize the apartment occupied by him free of charge (No 6001-22-00- 6ap/1102).

For reference: The plaintiff is an employee of the State Administration. Zh. applied to the Akimat of Aktobe with an application for gratuitous privatization of the disputed housing as a person with more than 10 years of public service experience and suffered as a result of an environmental disaster in the Aral Sea region.

By the decision of the housing commission at the akimat dated 09/30/2021, Zh.'s application was dismissed.

In dismissing the claim, the courts proceeded from the fact that the disputed housing belongs to the communal housing stock and is not the property of the State Administration, is not on its balance sheet, and therefore it is not a service housing or a dwelling equated to service housing.

Taking into account that the official documents did not establish the status of the dwelling place contested by the plaintiff, the judicial panel concluded that the dwelling place provided to the plaintiff belongs to the category of dwelling place equated to official housing, since, according to the meaning of paragraph two of subparagraph 4) of paragraph 1 of Article 67 of the Law, dwelling places provided to civil servants, which include the plaintiff, except for dwelling places rented by a local executive body in the private housing stock,  are equated to service loans.

We will also give another example, an administrative case on the claim of G. against the Russian State University to recognize as illegal and cancel the protocol decision of the housing commission on the refusal to privatize the apartment.

For reference: By the decision of the SIAS EKR, the claim was satisfied on the basis of the principle of justice, indicating that the plaintiff has more than 20 years of experience as a judge, has been living for 12 years and bears the burden of maintaining the disputed apartment, when purchasing the apartment, she paid part of its cost.

By the decision of the SCAD of East Kazakhstan region dated June 22, 2023, the court decision was canceled, a new decision was made to dismiss the claim. The panel noted that the plaintiff had previously exercised her right to privatize the housing from the state housing stock under the agreement on the privatization of the apartment dated October 9, 2003, which she subsequently presented to her niece under the gift agreement, the law does not provide for the re-privatization of other housing.

Paragraph 9 of Article 13 of the Law clearly states that a person has the right to privatize only one dwelling place from the state housing stock in the territory of the Republic of Kazakhstan.

In addition, the plaintiff in her application for privatization of housing did not indicate that the previously privatized apartment was privatized by her without a coupon mechanism.

It was also established that the plaintiff's application of April 21, 2022 was not considered within the established time frame before the separation balance sheet was drawn up, the hearing was not held in connection with the creation of the Abai region, the abolition of some courts of the region.

However, the SCAD EKR came to the conclusion that these violations did not lead to the adoption of an incorrect administrative act, therefore, an essentially correct administrative act cannot be recognized as illegal on formal grounds alone.

By the Resolution of the SCAD of the Supreme Court, the Resolution of the SCAD of East Kazakhstan region dated June 22, 2023 was upheld (No 6001-23-00-6ap/2192).

A notable example is also the lawsuit of an active serviceman in need of housing

For reference: M. filed a lawsuit against the RSU, the housing commission to recognize illegal and cancel the decision of the garrison housing commission, to impose the obligation to recognize the plaintiff with a family of five as needing housing for the provision of service housing.

By the decision of the military court of the Almaty garrison dated August 17, 2022, M.'s claim was dismissed.

By the decision of the Judicial Chamber for Civil Cases of the Military Court dated December 6, 2022, the court decision was canceled and a new decision was made to satisfy the claim.

The decision of the housing commission to refuse to recognize the plaintiff with a family of five as in need of service housing was declared illegal; It was decided to oblige the housing commission to eliminate the violations of the plaintiff's rights in full.

By the decision of the housing commission No5 of May 19, 2022, the plaintiff was denied registration as a person in need of housing, with a family of five.

The refusal is motivated by the fact that he was previously provided with housing, exercised his right to its privatization, and also alienated the apartment by terminating the privatization agreement, and from that moment the five years established by the housing legislation have not passed.

           The court of appeal, reversing the court's decision, found that after receiving a service housing at the place of service in 2005, the composition of the family increased in connection with the birth of children, as a result of which the housing occupied by him and his family members did not meet the sanitary standards provided for in paragraph 1 of Article 75 of the Law, in connection with which, on 13.04.2022, the plaintiff filed an application with the housing and communal services department and terminated the privatization agreement. It was established that the apartment was returned to M. and is currently in the state housing fund.

Neither he nor his family members have any housing on the right of ownership, which is confirmed by a certificate of the absence (presence) of real estate.

The plaintiff is an active military serviceman, has more than 20 years of service in calendar terms and, in accordance with the requirements of the above-mentioned law, has the right to be put on the waiting list of persons in need of housing.

By the resolution of the SCAD of the Supreme Court dated September 7, 2023, the decision of the appeal was upheld (No 6001-23-00-6ap/184). As another example, we cite the decision of the SIAS of Almaty dated June 7, 2022 (considered in written proceedings) satisfied the claim of A.D. against the Department to recognize the refusal to privatize housing from the communal housing stock as illegal (No 7594-22-00-4/942).

For reference: the court established that by the decision of the akim of the Bostandyk district of Almaty, A. at the age of eight was assigned to the Boarding School, then in 2002 he was transferred to the municipal state institution "Children's Home" of the Department of Education of Almaty.

Subsequently, on 27.08.2008, he was transferred to the KSU "House of Youth" and left this institution in 2019.

By the Decree of the Akim of Almaty dated 15.12.2021. For No4/652, the plaintiff consisting of 5 people was given secondary housing with an area of 41.5 sq.m., built in 1978 with the right of privatization at residual value, from the communal housing stock in the order of priority.

On the same day, a lease agreement was concluded between the Department and A.D. On 10.03.2022, an application for privatization was submitted through the portal gosreestr.kz the plaintiff to the Department, but the response dated 07.04.2022. was refused, since A.D. at the time of the application did not belong to the category of "orphans", due to exceeding the age of 29 years.

The court invalidated the defendant's arguments that the privatization of the above apartment was denied to the plaintiff due to the plaintiff's attainment of twenty-nine years of age.

The law regulates the procedure for privatization of housing and defines the list of subjects of housing legal relations that receive free ownership of the housing occupied by them from the state housing stock.

In particular, according to Article 13 of the Law, in cases provided for by this Law, a tenant of a dwelling place from the state housing stock, with the consent of adult family members and taking into account the rights of minors, has the right to privatize a dwelling place at residual value on the terms provided for by this Law, and in the manner determined by the Government of the Republic of Kazakhstan.

It follows from paragraph 6 of Article 68 of the Law that socially vulnerable segments of the population include: orphans and children left without parental care, under twenty-nine years old, who have lost their parents before reaching the age of majority.

Moreover, the requirement for the age of citizens belonging to orphans or children left without parental care is provided only when registering citizens of the Republic of Kazakhstan in need of housing from the communal housing stock or housing leased by a local executive body in the private housing stock, in accordance with subparagraph 7) of paragraph 3 of the Rules for registration of citizens of the Republic of Kazakhstan in need of housing from the communal housing stock or housing,  leased by a local executive body in private housing stock, approved by the Decree of the Government of the Republic of Kazakhstan dated 26.06.2012 No856.

Consequently, the legislation of the Republic of Kazakhstan does not provide for an age requirement for the privatization of housing from the state housing stock.

At the same time, the defendant's side does not dispute the plaintiff's arguments that, through the fault of the employees of the orphanage, he was not registered in a timely manner as those in need of housing, and also, as a result of an independent application, he was registered in the category of "orphans", and in December 2021 he received an apartment from the state housing fund.

Under such circumstances, the court considered that the Department, as an authorized state body, bears increased responsibility for providing housing, including the right to privatization, to those groups of citizens who have a high degree of need for housing and are not able to solve housing problems on their own.

Another example is related to the transfer of housing to communal ownership.

For reference: By the court decision of May 3, 2023, upheld by the decision of the appellate instance of August 2, 2023, R.'s administrative claim against the RSU to compel the transfer of the apartment to communal ownership for gratuitous privatization was satisfied.

The court ordered R. to transfer the apartment to communal ownership for gratuitous privatization. It has been established that the plaintiff has the right to benefits as a person who suffered as a result of nuclear tests at the Semipalatinsk test site.

By the protocol decision of the meeting of the Housing Commission of the Russian State University dated 09.11.2020, the privatization of R.'s apartment was allowed (7 people unanimously voted in favor).

The plaintiff did not privatize apartment No60 during the period of work at the Russian State University. On 04.03.2021, R. was transferred for further service at the Russian State University.

Satisfying the claim, the court concluded that the decision of the Housing Commission of the Russian State University dated 09.11.2020 was not recognized as illegal, in accordance with paragraph 19

of the 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 No. 673 (hereinafter referred to as the Rules), the defendant, after making a decision on privatization, had to transfer apartment No60 to communal ownership within 15 calendar days, which was not done.

           In addition, the plaintiff, as a victim of nuclear tests at the Semipalatinsk nuclear test site, has the right to receive free ownership of the dwellings occupied by them from the state housing stock.

Paragraph 12 of the Rules provides that the decision on the privatization of housing is made by: housing commissions of state institutions from the housing stock of state institutions.

In accordance with paragraph 24 of the Rules, a change in the applicant's place of work after receiving a decision on privatization of housing in installments in accordance with the established procedure does not affect the further exercise of his right to privatize housing under this decision.

           By virtue of subparagraph 4) of paragraph 8 of Article 13 of the Law, citizens of the Republic of Kazakhstan who have suffered as a result of nuclear tests at the Semipalatinsk nuclear test site have the right to receive free ownership of the dwelling places occupied by them from the state housing stock.

In view of the foregoing, the court concluded that the claim was satisfied in full, since this ensured a fair balance of interests of the participants in the administrative procedure. By the resolution of the SCAD SCAD of the Supreme Court dated February 7, 2024, judicial acts of local courts were upheld (No 6001-23-00-6ap/2406).

           The next example is related to the obligation of a state body to conclude lease agreements

           For reference: By the decision of the  SIAC of Astana dated August 17, 2023, upheld by the decision of the SCAD of the Astana City Court dated November 22, 2023, on the imposition of the obligation and compulsion to conclude a lease agreement, satisfied:

the State Institution is obliged to conclude a lease agreement with Sh.

It was established that Sh. from 15.05.1998 to 14.11.2005 was in labor relations with the State Enterprise on the REM. During the period of the plaintiff's work in the State Enterprise on the REM, the latter on September 30, 1998 acquired ownership of an apartment for temporary possession for the period until December 31, 1999.

By the protocol decision of the administrative commission of the State Enterprise on the REM dated 20.02.2001, Sh. must resolve the issue of redemption or vacation of the disputed apartment by March 1, 2001.

The response of the Deputy Akim of Astana dated September 14, 2001 to the State Enterprise for the REM gave consent to transfer the disputed apartment to the ownership of the plaintiff. On October 5, 2005, the disputed apartment was transferred from the balance sheet of the State Enterprise on the REM to the balance sheet of LLP. Subsequently, the disputed property was accepted into the communal ownership of Astana from the balance sheet of LLP on the basis of the Resolution of the Akimat of Astana No16-124p dated February 8, 2007 free of charge.

However, the right to the disputed property is not properly registered with the registration authorities. The plaintiff's appeals for the privatization of the disputed apartment and the conclusion of a lease agreement for the disputed property were dismissed.

Earlier, by the decisions of the Baikonyr District Court of Astana that came into force, Sh.'s claims for recognition of ownership by virtue of acquisitive prescription and recognition of the disputed property by the tenant were dismissed.

The courts proceeded from the fact that the disputed property was transferred to the plaintiff by the employer as official housing and the apartment is currently part of communal ownership, in connection with which the defendant has the right to draw up a lease agreement with the plaintiff.

The inaction of the property owners to vacate it in a timely manner and assume the burden of its maintenance indicates the recognition of the plaintiff's legal residence in the disputed apartment.

In addition, the change of ownership did not entail the termination of the plaintiff's right to live in the disputed apartment. According to paragraph 1 of Article 67 of the Law, housing from the communal housing stock or housing leased by a local executive body in the private housing stock is provided for use to citizens of the Republic of Kazakhstan in need of housing permanently residing in this settlement.

For registration of citizens of the Republic of Kazakhstan in cities of republican significance, the capital requires permanent residence for at least three years.

Paragraph 2 of the above article provides that housing from the housing stock of state enterprises is provided for use to employees of this enterprise in need of housing.

The housing provided to them is equated to service housing. Consequently, the courts concluded that untimely and improper registration of ownership of the disputed property does not indicate that the apartment is not in communal ownership.

Failure to properly register the property accepted into communal ownership on the basis of the resolution of the local executive body, in the opinion of the judicial panel, is an omission committed by the authorized bodies, while this circumstance should not entail adverse consequences for the plaintiff. Taking into account the fact that the disputed property was transferred to communal ownership, the courts concluded that the plaintiff had the right to conclude a lease agreement with the Administration.

Therefore, taking into account the principle of protection of the right to trust, based on the criteria of fairness and reasonableness, taking into account the fact that for 25 years the authorized bodies did not show any interest in the disputed property and did not ensure proper registration of property rights, the courts concluded that the claim was justified (No 7194-23-00-4/2169). This administrative case is under consideration by the SCAD of the Supreme Court. 

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 SIO database contains only current data (there is no history with the dates of permanent/temporary registration/discharge in the PSO SIO), such data is 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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