Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
The main regulatory acts regulating relations on the recognition of ownership rights to unauthorized construction are: the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), the laws of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in Republic of Kazakhstan" No. 242 dated July 16, 2001 (hereinafter referred to as – The Law on Architectural Activity), "On Individual Housing Construction" No. 213 dated November 03, 1994, "On Local and State Administration and Self-government in the Republic of Kazakhstan", etc. The courts are also guided in resolving cases by the regulatory rulings of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" No. 10 dated July 09, 1999, "On certain issues of dispute resolution related to the protection of the right of ownership of housing" No. 5 dated July 16, 2007, "On certain issues of the application of courts of Land Legislation" No. 6 dated July 16, 2007, "On some issues of the application of Inheritance legislation by Courts" No. 5 dated June 29, 2009. A total of 54 cases have been submitted to the Supreme Court for examination. An analysis of cases and judicial acts has shown that local courts generally correctly apply the norms of legislation when considering cases of the generalized category. However, in some cases, there is a different interpretation of the law. In accordance with Part 1 of Article 33 of the CPC, claims for rights to buildings, premises, structures, and other objects firmly connected to land (immovable property) are filed at the location of these objects. In cases where the plaintiffs are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using the building for entrepreneurial activities, claims are filed with specialized interdistrict economic courts in accordance with part 1 of Article 30 of the CPC.
Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
However, these jurisdiction requirements are not always respected. Due to the violation of the rules of procedural law on the jurisdiction of the dispute, the decision of the appellate judicial board of the Kostanay Regional Court of March 14, 2011 overturned the decision of the Kostanay City Court of February 01, 2011 on the claim of A. to the akimat ofKostanay on recognition of ownership rights to unauthorized construction. The Board pointed out that A. The claims are filed in connection with his entrepreneurial activity and actually relate to the interests of IP "A." which, in accordance with Article 30 of the CPC, is the jurisdiction of the economic court. The courts need to take into account the provisions of paragraph 2 of the regulatory decree of the Supreme Court No. 5 of July 16, 2007 "On certain issues of dispute resolution related to the protection of ownership of housing," according to which a claim for ownership of housing is filed with the court at its location. A claim filed in violation of the rules of jurisdiction is returned, and one accepted for production is sent according to the jurisdiction. A study of judicial acts has shown that the courts do not have a uniform practice in resolving the issue of a proper defendant in cases of this category. The courts of Zhambyl and Karaganda regions believe that claims for recognition of ownership of an unauthorized building should be filed against the State Institution "Akim's Office".
Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
This position is motivated by the fact that, in accordance with articles 26, 30 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan", both regional and district (cities of regional significance) akimats are not legal entities. According to subparagraph 2) of Article 1 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan", the akim's office is a state institution, that is, a legal entity that ensures the activities of the local executive body (if established) and akim. The Kostanay Regional Court considers it appropriate to involve the akim of the relevant administrative-territorial unit as a representative of the state, whose competence also includes the provision of land plots, as an appropriate defendant in this category of disputes. The courts of North Kazakhstan, Akmola regions and Astana city determine akimats as appropriate defendants. According to paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of ownership of housing," a claim for recognition of ownership of an unauthorized dwelling is filed with a local executive body and is considered by a court in the order of claim proceedings. Subparagraph 4) of Article 1 of the Law "On Local and State Administration and Self-Government in the Republic of Kazakhstan" defines that a local executive body (akimat) is a collegial executive body headed by the akim of a region (city of republican significance and capital), district (city of regional significance), exercising local public administration and self-government within its competence. on the relevant territory.
Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
According to articles 26, 29, 30, 33 of the Law "On Local Public Administration in the Republic of Kazakhstan" dated January 23, 2001, the akim represents the interests of the relevant administrative-territorial unit in relations with citizens, legal entities and government agencies. Therefore, the akim of the relevant territorial unit must be a party to the case. It should be noted that the practice of the past years, when lawsuits in this category of cases were brought against various state institutions, without involving the local executive body has changed. In general, there is an understanding that the defendants in cases of this category should be the relevant akims, taking into account their competence. In the period under review, there were cases when lawsuits were filed not against the local executive body, but against other government agencies. For example, claims for recognition of ownership of an unauthorized building have been accepted for consideration and satisfied. to the State Institution "Housing and Communal Services Department of Akimat of Zhitikarinsky district" (Zhitikarinsky district Court of Kostanay region), M. to GKP "E" (court no.2 Enbekshikazakh district of Almaty region) without involving the akim of the relevant territorial unit as a defendant. When filing claims for recognition of ownership of an unauthorized building, plaintiffs pay a state fee, as for property disputes in accordance with subparagraph 1) of paragraph 1 of Article 535 of the Tax Code of the Republic of Kazakhstan, in the amount of 1% individuals, 3% legal entities of the market price of the building on the day of the appeal to the court. At the same time, in some cases, the courts accepted and considered claims with payment of a state fee in the amount of 50% of the MCI. Cases on claims for recognition of ownership of IP A. to the akimat of Akkayynsky district (SMES of North Kazakhstan region), S. to GKP "E" (court no.2 of the Enbekshikazakh district of the Almaty region), U. to GU "A" (Zelenovsky district Court of the West Kazakhstan region). The study showed that some courts accept applications for establishing the legal fact of ownership of an unauthorized building. The courts, considering such applications in a special procedure without involving interested state bodies, unlawfully appropriate the powers of akimats, departments of land relations, architecture and urban planning, etc. By the decision of the Temirtau City Court of the Karaganda region dated November 16, 2011, A.'s application for establishing the legal fact of ownership of an unauthorized building was satisfied. The court established the legal fact of ownership of the unauthorized garage building for the plaintiff and ordered the Department of Justice of Temirtau to register ownership of the garage for the plaintiff. At the same time, it should be noted that when deciding on the registration of the plaintiff's property right, the court, in violation of subparagraph 3) of part 1 of Article 366 of the CPC, resolved the issue of the rights and obligations of a person – the Department of Justice, who was not involved in the case. The court's decision has not been appealed or protested.
Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
Within the meaning of Article 244 of the Civil Code, an unauthorized building is a building erected by a relevant person: – on state land that has not been formed into land plots without permits; - on a land plot that does not belong to the person who erected the unauthorized building without permits; - on a land plot owned by a person by right of ownership or ownership, who erected an unauthorized building without permits. Courts should also take into account the provisions of Articles 235, 237 of the Administrative Code, by virtue of which any structure erected without passing through licensing procedures is considered illegal. When considering a case, when a building is erected on an unformed land plot, which means on a state land plot, the courts need to establish that the authorized body can provide the land plot to one of the interested parties or inform the court that the plot under the unauthorized structure will be provided to one of the parties for which the court recognizes ownership of the building.
Lawyer in Almaty in civil cases related to the recognition of ownership of unauthorized construction of the right of ownership of housing.
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