On declaring illegal the decision of the housing commission to refuse to privatize the occupied dwelling and on imposing the obligation to grant permission to privatize the occupied dwelling
No. 6001-22-00-6ap/1433 dated 12.01.2023
Plaintiff: A.M.
Defendant: KSU "Housing Fund" of the akimat of the city of Nur-Sultan
The subject of the dispute: on declaring illegal the decision of the housing commission to refuse to privatize the occupied dwelling and on imposing the obligation to grant permission to privatize the occupied dwelling
Review of the plaintiff's cassation complaint PLOT:
According to the apartment privatization agreement dated August 7, 2000, the plaintiff's spouse, A.O., and her son, A.A., acquired joint ownership of a one–room apartment at the address: Almaty, Turksib district, Krasnogorskaya Street, house A, apartment B.
On May 29, 2001, according to the contract of sale, the specified apartment was sold to G.A.
On October 1, 2021, on the basis of a lease agreement for office housing, the plaintiff and his family members were provided with a two-bedroom apartment from the state housing fund at the address: Nur-Sultan, R.Koshkarbayev Avenue, house A, apartment B (hereinafter referred to as the disputed apartment).
Based on the order No. 1450/o dated August 6, 2020, this apartment is under the operational management right of the Housing Fund of the Akimat of the city of Nur-Sultan.
On October 20, 2021, A.M. applied to the Housing and Housing Inspectorate of the city of Nur-Sultan with an application for the privatization of the disputed apartment free of charge, enclosing statements from all family members about their refusal to participate in the privatization of the apartment and their share of ownership in it after its privatization.
The Housing Department has forwarded the plaintiff's application to the Housing Fund for consideration.
By the decision of the housing commission, the privatization of the dwelling was refused, due to the fact that the family members of the tenant indicated in the rental agreement had previously used their right to privatize housing from the state housing stock.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are cancelled, the claim is satisfied.
Conclusions:
The courts motivated the conclusions by the fact that the family members of the plaintiff A.M., the spouse and the eldest son, had already exercised their right to privatize housing from the state housing stock by privatizing the above-mentioned apartment in the city of Almaty. The area of the disputed apartment is 95.3 sq.m. and the plaintiff has no right to demand its privatization.
The documents available in the case file confirm that at the time of the privatization of the apartment in Almaty with a total area of 37 sq.m., the residential area was 19.2 sq.m. the plaintiff was in a registered marriage with AA, and they had two minor children dependent on them.
In accordance with paragraph 1 of Article 75 of the Law, as amended on August 7, 2000, a dwelling from the state housing stock is provided in the amount of at least fifteen square meters and not more than eighteen square meters of usable space per person, but not less than a one-room apartment.
In accordance with article 2 of the Law, the usable area of a dwelling (apartment) is the sum of the residential and non-residential areas of a dwelling.
According to paragraph 2 of article 13 of the Law, a privatized dwelling becomes the common joint property of the tenant and all family members permanently residing with him, including those temporarily absent, unless otherwise provided by an agreement between them.
The Board considered noteworthy the plaintiff's explanations that he and his second son were not included in the privatization agreement of the apartment, which is actually a common joint property, only due to the discrepancy between the usable area of the dwelling and the composition of a family of 4 people. If all family members were included in the privatization agreement, each member's share would amount to 25%.
Taking into account the above, the judicial board comes to the conclusion that the grounds for refusing the plaintiff to privatize the apartment are formal in nature, limiting him in exercising the right guaranteed by law.
The contested judicial acts contradict the main goals and objectives, principles of administrative proceedings and are subject to cancellation.
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