Response to the claim for recognition of the protocol and the decision of the meeting of owners of apartments and non-residential premises as illegal
To the Bostandyk District Court of Almaty
Judge Utebekov A.D.
Almaty, Bostandyk district, md. Orbit 2, 20a.
+7 778 291 07 51.
from the Defendant: The AXES OF "MZhK ave. 223"
BIN
223 N. N. ave., Almaty.
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 78 58; +7 708 971 78 58.
Feedback
on the claim
In your proceedings there is a civil case No. 7514-23-00-2/7826 dated 07/25/2023 on the claim of D.G.E., D.S.S., B.N.E., J.T.V., M.A.A., S.S.B., J.K.N. (Hereinafter referred to as the Plaintiffs) to the Association of Property Owners "MZHK 223 Nazarbayev Avenue" (Hereinafter referred to as the Defendant) on the recognition of the protocol and the decision of the meeting of owners of apartments and non–residential premises of the Nazarbayev Housing and Communal Services 223 as illegal.
We disagree with the plaintiffs' arguments in the lawsuit for the following reasons:
On February 2, 2023, in accordance with art. 41-1 of the Law of the Republic of Kazakhstan "On Housing Relations", the KSU "Department of Municipal Infrastructure Development of Almaty" conducted an unscheduled inspection in the AXIS "MZHK Nazarbayev 223" under the Chairman D.G.E. for compliance with the Rules of maintenance of the common property of the condominium facility, where the Department revealed a number of violations.
Thus, dissatisfied apartment owners with the work of the previous chairman of the AXIS, D.G.E., who committed numerous violations, made a general decision to hold a general meeting and decide on: 1. The re-election of the members of the Council of the House of AXIS. 2. The re-election of the Chairman of the AXIS. 3. Re-election of the Audit Commission.
In accordance with paragraph 1, Article 42-1 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), owners of apartments and non–residential premises at a meeting consider issues and make decisions related to the management of the condominium facility and the maintenance of the common property of the condominium facility.
In particular, the competence of the meeting includes the election of the chairman of the association of property owners, a trustee of a simple partnership, members of the house council, re-election, as well as the early termination of their powers. As well as the election of the audit commission (auditor), re-election, as well as the early termination of its (his) powers.
Due to the fact that on February 22, 2023, the appointed term of the Chairman of the AXIS, D.G.E., expired as Chairman of the AXIS, the apartment owners notify the remaining owners of apartments and non-residential premises.
Paragraph 3, Article 42-1 of the Law stipulates that the owners of apartments and non-residential premises are notified by the council of the house or by the chairman of the association of property owners, or by a trustee of a simple partnership, or by the audit commission (auditor), or by at least ten percent of the owners of apartments, non-residential premises, or by the housing inspectorate at least ten calendar days in advance of the date holding a meeting by placing an announcement in publicly accessible places, as well as individually by e-mail or by the subscriber number of a cellular subscriber device.
On April 25, 2023, an initiative group of 41 apartment owners joined forces and sent a notification of the convening of an initiative group meeting on April 21, 2023 to a WhatsApp group called the Main Chat of the Zheruyk AXIS, where all apartment owners are members of the group. An advertisement was also submitted in the newspaper, where the notification stated that the meeting would be held on May 1, 2023 at 20:00 at the address: 223 Nazarbayev Ave., Almaty shopping center, 2nd floor, conference hall.
On May 1, 2023, a meeting of apartment owners was held, at which the early re-election of the AXIS house council (Batyrbayeva N. et al.) was considered. The audit commission and Chairman D.G. As a result of voting, a potential AXIS Chairman in the person of K.B.T. and the potential composition of the house council were determined by polling among apartment owners and non-residential premises.
According to art. 42-2 of the Law, a meeting is held by written poll if the previously announced meeting did not take place in person due to the lack of a quorum. The meeting is held on the initiative of the council of the house, the chairman of the association of property owners, a trustee of a simple partnership, or at the request of the audit commission (auditor), or at the initiative of the housing inspectorate, or at the request of at least ten percent of the owners of apartments, non-residential premises.
To organize a meeting, an initiative group is determined by conducting a written survey from among the owners of apartments and non-residential premises.
Thus, the initiative group purposely sends the written survey sheets to the owners. The number of participants in the written survey (according to the form of the written survey sheet attached to the protocol) is 216 people. The written survey sheets correspond to paragraph 4, art. 42-2 of the Law. Thus, the summing up of the voting results by means of a written survey was carried out by the initiative group.
Paragraph 5, art. 42-1 of the Law stipulates that the meeting is authorized to make a decision if more than half of the total number of apartment owners and non-residential premises participate in it.
On May 15, 2023, by Protocol No. 2/1 of the meeting of apartment owners in the non-residential premises of an apartment building, the owners voted to: 1. The re-election of the members of the Council of the House of AXIS. 2. The re-election of the Chairman of the AXIS. 3. Re-election of the Audit Commission. We remind you that the number of participants in the written survey (according to the form of the written survey sheet attached to the protocol) is 216 people. 212 owners voted "yes" to all three issues that were put on the agenda of the meeting. The minutes of the meeting were signed by the Chairman, the Secretary of the meeting, and the members of the House Council.
In paragraph 12, art. 42-1 of the Law, decisions taken by the assembly, drawn up in minutes, are a document when considering controversial and other issues in court, other government agencies and organizations as an expression of the will of the owners of apartments, non-residential premises, and also serve as the basis for calculating housing assistance.
According to Article 44 of the Law, which stipulates that an association of property owners is considered established and acquires the rights of a legal entity from the moment of its state registration.
Subsequently, the Chairman of the AXIS, K.B.T., submitted an application for state (accounting) registration of the amendments and additions to the founding documents of the AXIS. The Department of Justice has issued a certificate of state registration (re-registration) of a legal entity
In accordance with Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
We also believe that the Plaintiff violates the requirements of good faith, reasonableness and fairness provided for in Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the Statement of Claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it.
113 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party (payment orders, fiscal receipt). For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.
Based on the above and in accordance with art. 166 of the CPC RK,
I ask the Court:
The claims of the plaintiffs D.G.E., D.S.S., B.N.E., Zh.T.V., M.A.A., S.S.B., Zh.K.N. to the Association of property owners "MZHK Avenue Nazarbayev 223" on recognition of the protocol and the decision of the meeting of owners of apartments and non–residential premises of MZhK Nazarbayev 223 illegal - in to refuse satisfaction;
In case of refusal to satisfy the claim, to recover from the plaintiffs D.G.E., D.S.S., B.N.E., Zh.T.V., M.A.A., S.S.B., Zh.K.N. in favor of the Defendant, the Association of Property Owners "MZHK 223 Nazarbayev Avenue" representative expenses in the amount of 500,000 tenge.
With respect,
Representative by proxy: Kenesbek I.M.
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