Termination of ownership, recognition of apartment purchase and sale transactions as invalid and transfer of the apartment to communal ownership, Invalidation of powers of attorney, archival copies of the privatization agreement and apartment purchase and sale agreements, and eviction
The owners of the apartment committed acts indicating the removal from possession of the use and disposal of it, did not take measures to preserve the housing, which is their renunciation of ownership of it. P. filed a lawsuit against O., Sh., A., T. and G. to invalidate the powers of attorney, an archived copy of the privatization agreement and apartment purchase and eviction agreements, the State Institution "Department of Housing and Communal Services" (hereinafter - GU) also filed a lawsuit against S., B., V., S., A., G., etc . on the termination of ownership rights, the recognition of apartment purchase and sale transactions as invalid and the transfer of the apartment to communal ownership. P., appealing to the court, motivated the claim by the fact that the apartment in the residential district of Karaganda (hereinafter referred to as the disputed apartment) had left ownership against her will, appealing to the court, motivated the claim by the fact that the plaintiff and members of the Her family renounced their ownership rights and abandoned the disputed apartment, which is therefore subject to transfer to communal ownership. By the decision of the District court No. 3 of the Oktyabrsky district of Karaganda dated November 7, 2012, the claims of P. and the GU are partially satisfied. Invalidated: power of attorney No. 2-1907 dated April 10, 2003 on behalf of E., B., T., S. and V. in the name of N.; power of attorney No. 6-5478 dated July 15, 2004 on behalf of N. in the name of O., the contract of sale of the disputed apartment dated April 10, 2006, concluded between Sh. and O. With O. and S. in favor of P. The state duty was collected in the amount of 1,618 tenge and 809 tenge, respectively.
Termination of ownership, recognition of apartment purchase and sale transactions as invalid and transfer of the apartment to communal ownership, Invalidation of powers of attorney, archival copies of the privatization agreement and apartment purchase and sale agreements, and eviction
The rest of the claim by P. and the third party was denied. By the decision of the appellate court of July 19, 2013, which was left unchanged by the decision of the cassation court of January 10, 2014, the decision was changed, regarding the refusal to satisfy the claim, P. was canceled with a new decision. The purchase and sale agreements of the disputed apartment were declared invalid: on September 1, 2006, concluded between Sh. and A., and on December 4, 2009, concluded between A. and G., T. G. and T. were evicted from the disputed apartment. The decision regarding the satisfaction of the claims of the State Duma was canceled with the issuance of a new decision to dismiss the claim. The rest of the solution remains unchanged. Having examined the case materials and the arguments of the petitions received, the supervisory judicial board of the Supreme Court came to the following conclusions. According to the privatization agreement dated February 4, 1994, the owners of the disputed apartment were P., T., B., V. and E. On the basis of a power of attorney from the owners of the apartment in the name of N. dated April 10, 2003 and a power of attorney in the name of O. dated July 15, 2004, by right of transfer, the disputed apartment was sold to Sh. The latter, under the sale agreement dated September 1, 2006, sold the disputed apartment to A., who, under the sale agreement dated December 4, 2009, sold it to G. and T. The Court of First Instance, invalidating the powers of attorney on behalf of the owners of the disputed apartment in the name of N. and O., as well as the apartment purchase agreement concluded between O. and Sh., correctly motivated by the fact that the owners of the disputed apartment did not issue a power of attorney for its alienation.
The appellate and cassation judicial boards agreed with these conclusions of the court. Judicial acts in this part are not disputed in the petition. In refusing to satisfy P.'s claim regarding the invalidation of subsequent transactions on the alienation of disputed real estate by A., G., and T., as well as the eviction of the latter from the apartment, the court of first instance reasoned that the said purchasers had acted in good faith at the time of the transactions, and the disputed apartment had left the plaintiff's ownership at her will. The court of appeal, with the conclusions of which the cassation judicial board agreed, overturned the court's decision to dismiss P.'s claim and satisfied P.'s claims in full, arguing that the apartment had left P., B. and V.'s possession against their will. The transactions on the alienation of the disputed apartment by A. and G., T. were declared invalid due to the lack of will of the owners to alienate their property, and therefore T. and G. were evicted from the disputed apartment. Meanwhile, these conclusions of the courts of appeal and cassation instances cannot be recognized as legitimate and justified. According to subparagraph 4) of the first part of Article 364 of the CPC, the grounds for revoking or changing a court decision are violations or improper application of substantive law. Substantive law norms are considered violated or improperly applied (subparagraph 3) of Article 365 of the CPC) if the court has misinterpreted the law. It follows from the case file that in 2000, the plaintiff's family, having received permission to live in a three-room apartment next door, abandoned the disputed apartment and moved to another apartment. This circumstance is not disputed by P. and it is confirmed by the testimony of employees of the cooperative of apartment owners, P.'s neighbors, by the act on the technical condition of the disputed apartment dated June 7, 2000, from which it follows that the apartment was abandoned by the owners, it lacked windows, an entrance door and plumbing. In this connection, the authorized body, in order to preserve housing under the custody agreement over the property (apartment) of a temporarily absent citizen dated October 26, 2000, the disputed apartment was transferred to K. From the statement of T. On May 24, 2000, addressed to the acting akim of the Oktyabrsky district, it follows that she refused the disputed apartment due to the fact that the other owners had checked out and moved out of it, it was broken, and she did not have the means to restore it and pay her debts.
In accordance with paragraph 1 of Article 63 of the Law "On Marriage and Family" (in force at the time of the disputed legal relationship), parents are the legal representatives of their children and advocate for their rights and interests in relations with any individuals and legal entities, including in courts without special powers, i.e., renouncing property rights. at the disputed apartment, she represented the interests of her minor children, including the plaintiff, who was 12 years old at the time. In addition, P., having reached the age of majority in 2005, did not make any claims on the disputed apartment. The Court of First instance found that P.'s family had moved out of the disputed apartment in 2000, and since that time had not borne the burden of maintaining the apartment, had not been interested in its fate, and had not taken any measures to maintain it. Thus, the owners of the disputed apartment committed actions that clearly indicate the removal of ownership, use and disposal of the apartment, did not take measures to preserve housing, which, in accordance with Article 250 of the Civil Code (hereinafter referred to as the Civil Code), is the plaintiff's waiver of ownership of the apartment. The actions of the plaintiffs indicate that they left the dwelling without intending to keep it for themselves. It is the inaction of the plaintiff and her family members, their careless attitude to their property, that indicate that the housing was removed from their possession by their will long before fictitious powers of attorney were issued on behalf of the owners of the disputed apartment for its alienation. Not accommodation for P., B., etc. Since 2000, housing in the disputed apartment has not exempted them from its maintenance in a proper habitable condition, and should not have contributed to its destruction or damage, or to the violation of the living conditions of other tenants, since, according to paragraph 2 of article 6 of the Constitution, property obliges its use to serve the public good at the same time. The conclusion of the court of first instance that the disputed apartment was removed from the plaintiff's possession at her will is consistent with the requirements of paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 3 "On the practice of judicial review of disputes on the right to housing abandoned by the owner", which regulates that abandoned (or abandoned) housing It is called a dwelling in respect of which the owner has not committed any actions indicating the intention to retain ownership.
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