On recognition as illegal and cancellation of the decision of the housing commission on refusal to renew the lease agreement
No.6001-23-00-6ap/121ot 07/18/2023
Plaintiff: That is,
Defendants: State Institution "Department of Housing and Communal services, passenger transport and highways of the Akimat of the district", akimu of the district
The subject of the dispute: on the recognition of the illegal and cancellation of the decision of the housing commission on the refusal to renew the lease agreement
Review of the plaintiff's cassation appeal.
PLOT: According to the standard lease agreement for housing No. 15 dated December 21, 2017, apartment No. 30, house No. 5/2 MKR, was provided. Severny in the village of Zarechny district. A member of T.V.'s family, her son was listed in the employment contract – T.L. T.V. died on January 15, 2020.
In this regard, on July 29, 2021, the apartment was reissued in the name of T.L. T.L. died on February 3, 2022. That is, the daughter of the deceased T.L. on April 28, 2022, contacted the Housing and Communal Services Department regarding the renewal of the lease agreement for her, as a family member who lived with the tenant. By the decision of the housing commission of the Akimat of the district dated April 29, 2022, the renewal of the lease agreement was refused. The plaintiff, considering this refusal illegal, violating her rights and legally protected interests, appealed to the court with the above-mentioned claim.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the court's decision is overturned, the claim is denied. Cassation: the appeal ruling is upheld.
Conclusions: The Court of First Instance motivated its decision to satisfy the claim by the fact that the plaintiff had been living with T.L.'s father since January 2020. The court of Appeal, disagreeing with such conclusions and rejecting the claim, came to a reasonable conclusion based on the following. In accordance with article 95 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), an adult family member of an employer (sub-tenant) may, with the consent of the employer (sub-tenant) and other adult family members, request recognition as an employer (sub-tenant) under a previously concluded lease agreement instead of the original employer (sub-tenant).
The same right belongs in the event of the death of the employer (sub-tenant) to any adult family member of the deceased (deceased). The circle of family members is determined in accordance with article 21 of the Law.
Permanent cohabiting spouses and their children are recognized as family members of the homeowner. The parents of the spouses, as well as children who have their own families and permanently reside with the owner, can be recognized as members of the owner's family only by mutual agreement.
In exceptional cases, other persons may also be recognized as family members of the owner of the dwelling if they have been living permanently with the owner and have been sharing a household with him for at least five years. According to article 84 of the Law, an employer (sub-tenant) has the right to move a spouse, children, or parents into an occupied dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock, having received the written consent of adult members of his family living with him. The consent of other family members is not required to move in with the parents of their minor children.
Persons who have moved into a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock as family members, in accordance with this article, acquire the right to use this dwelling on an equal basis with other persons living in it, if, when moving in between these citizens, the tenant (sub-tenant) and those living with him There was no other written agreement between adult family members. Thus, in order to be recognized as a member of the employer's family, the plaintiff must confirm the fact that she was moved in by the employer and permanently resided with the employer.
The plaintiff is not a minor, she is registered in her mother's apartment, which belongs to her on the basis of a privatization agreement at the address of the village.Zarechny, Pushkin St. 24, apartment 7, building 24.
Evidence confirming the plaintiff's permanent residence with the tenants of the disputed apartment has not been provided.
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