On establishing the fact of ownership, use and disposition of property rights

I. applied to the court with an application to establish the fact of ownership, use and disposition of property, namely: a room located at the address: G. A., T. Street (former K.), 7A, room 121. This room is not her property, but she bears the burden of maintenance for the payment of utilities. On April 24, 2000, the above-mentioned room was provided by the Housing Department to G. A. and her husband, D.. She has owned this room lawfully and in good faith for 15 years as her own real estate, and therefore believes that she has the right to acquire ownership of the above-mentioned housing.

At the hearing, the applicant I. supported the application and asked the court to establish the fact of possession, use and disposal of the property, namely: a room located at 7A T. Street, room 121, G.A.

The representative of the akimat of the city of A.M., who also represents the interests of the interested party of the State Institution "Housing Management G. A.", did not agree with the stated requirements at the court session, asked to dismiss the claim, since the right to own, use and dispose of the specified room belongs to the State Institution "Housing Management of the city of A." on the basis of a resolution of the territorial committee of State Property and privatization G. A. No. 174 dated November 11, 1999.

The representative of the State Institution "Department of Justice G. A.", who was involved as an interested person, did not appear at the court session, although he was duly notified of the day and time of the court session, did not inform the court about the reasons for his non-appearance, did not ask for consideration of the case without his participation, or postponement.

In such circumstances, the court considers it necessary to recognize the reason for the non–appearance of the person concerned as disrespectful in accordance with part six of Article 196 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC) and consider the case in his absence.

Having studied the case materials and listened to the explanations of the persons who appeared, the court comes to the following conclusion.

In accordance with part one, subparagraph 6) of part two of Article 305 of the CPC, the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities depends.

The court considers cases on establishing the facts of the existence of documents confirming the ownership, use and (or) disposal of immovable property, if the applicant had a title document on the ownership of the property, but it is lost, and this fact cannot be established out of court.

According to Article 306 of the CPC, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents.

The court found that, according to the direction of the Department of Housing of the city of A. dated April 24, 2000, No. 100 D., permission was granted to settle in a dormitory at the address: G. A., 7a K. Street, room 121.

According to the resolution of the Territorial Committee of State Property and Privatization of the city of A. of the Department of State Property and Privatization of the Ministry of Finance of the Republic of Kazakhstan No. 174 dated November 11, 1999, the Housing Department of the Administrative Council of the FEZ of G. A. was transferred the rights of ownership, use, management and disposal of dormitories of the state housing stock. The list of transferred dormitories also includes a dormitory located at 7A K. Street, G.A.

According to the second part of Article 76 of the CPC, the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court. Such circumstances are not proven again in other civil cases involving the same persons.

From the decision of the Saryarkinsky district court of G. A. dated April 29, 2015 on D.'s claim to the akimat of G. A. for recognition of ownership rights under the statute of limitations, it follows that according to the response of the territorial committee of State Property and Privatization of the city of A. No. 04-05/376 dated April 18, 2008, the territorial committee of state property and privatization of the city of A. is not a balance holder house number 7 on K. Street.

According to registration file No. 2100/125209, ownership of the real estate object located at 7A K. Street, G.A., is not registered with anyone.

By virtue of paragraph 8 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance" facts of ownership, use and (or) disposition of property on the basis of ownership, economic management, operational management (subparagraph 5) of the second part of Article 291 of the CPC) They are established by the court only on condition that the applicant had a title document on the ownership of the property, but it is lost, and the specified fact cannot be established out of court. At the same time, the court, when considering such cases, establishes only the fact of the existence of documents confirming the ownership of the applicant's property, and not his ownership right.

In accordance with Article 68 of the CPC, each piece of evidence is subject to assessment, taking into account its relevance, admissibility, and reliability, and all the evidence collected together is sufficient to resolve a civil case.

In accordance with Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.

At the same time, the applicant did not provide the court with evidence that she had a title document on the ownership of the property, and it was lost, therefore, there are no grounds for satisfying the application for establishing the legal fact of possession, use and disposal by applicant I. of the property in the form of room No. 121 in house No. 7A on T. V. Street..

Guided by articles 223-226 of the CPC, the court

R E W And L:

To refuse to satisfy I.'s application for establishing the fact of ownership and use of the dwelling.

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