They cannot be evicted from their official residence
According to paragraph 5 of Article 120 of the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94 "On Housing Relations", persons who have worked at an enterprise or institution that provided official housing for at least 10 years cannot be evicted from official housing provided before the enactment of this Law without providing another suitable place to live. The Plaintiff's housing is the communal state institution "Orphanage No. 2 for orphans and children left without parental care in the city of Yesil" of the Department of Education of the Akmola region (hereinafter referred to as – KSU "Orphanage No. 2") filed a lawsuit against S. for eviction from his apartment, stating that he is the owner of the property located at 21 Auezova Street, Yesil, Akmola region, based on the decision on legalization No. 881 dated December 15, 2006. S. on Based on the contract dated September 3, 1991, she was hired as a Russian language teacher and was provided with apartment No. 8 as an employee. The rental agreement was not concluded, the defendant's residence took place with the oral permission of the administration. In February 2016, the employment contract with the defendant was terminated, but the release of housing did not take place on a voluntary basis, and therefore the KSU "Orphanage No. 2" requested that the defendant be evicted without providing other housing. The claim was satisfied by the decision of the Yessil District Court of Akmola region dated September 20, 2016.
They cannot be evicted from their official residence
It was decided to evict S. from apartment No. 8, house No. 21, on Auezova Street, in the city of Yesil, Akmola region, without providing other housing. By the decision of the judicial Board for civil cases of the Akmola Regional Court dated December 14, 2016, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, and in the case adopted a new decision to dismiss the claim of KSU "Orphanage No. 2" by virtue of the following. The materials of the civil case established that the defendant S. On the basis of the employer's order No. 25 dated August 30, 1991, she was hired as a teacher of Russian language and literature at the Orphanage No. 2 located in the city of Yesil, Akmola region. Based on contracts dated September 1, 2009, No. 78, September 1, 2010, No. 53 and August 29, 2014, No. 78, the defendant's employment relationship with the employer was extended. According to the order of the director of KSU "Orphanage No. 2" dated February 10, 2016 No. 23 S. The employment contract was terminated on the basis of paragraph 5 of Article 49 of the Labor Code of the Republic of Kazakhstan on the initiative of the employee. Based on the decision on legalization No. 881 dated December 15, 2006, the plaintiff is the owner of the teacher's house at 21 Auezova Street, Yesil. To the defendant S. In connection with her employment in 1991, she was provided with living quarters in a dormitory building located on the territory of an orphanage, and in 2006, by agreement, she was relocated to apartment No. 8 of a two-story apartment building owned by the plaintiff on the basis of a decision on legalization, as an employee of this institution free of charge. The claims were motivated by the fact that the employment contract with the defendant was terminated on the initiative of the latter, and due to these circumstances, she is obliged to vacate the office premises. The plaintiff's claims were recognized by the local courts as legitimate, justified and were the basis for the satisfaction of the claim. When considering and resolving this housing dispute, the courts made mistakes in the application of substantive law.
Thus, the court of first instance incorrectly made references to the norms of Articles 188 and 260 of the Civil Code of the Republic of Kazakhstan, since the plaintiff does not dispute the ownership of immovable property belonging to him, nor does he raise the issue of reclaiming property from someone else's illegal possession, and the subject of the dispute is the defendant's eviction from office premises due to termination of employment relations. The legal definition of official housing is given in paragraph 20 of Article 2 of the Law of the Republic of Kazakhstan "On Housing Relations" dated April 16, 1997 No. 94 (hereinafter referred to as the Law). According to the requirements of paragraph 1 of Article 109 of the Law, office housing is intended for occupancy under a contract of employment to citizens of the Republic of Kazakhstan who, due to the nature of their employment relationship, must reside at their place of work. Thus, the stated norms of housing legislation indicate that a contract for the rental of a service dwelling should have been concluded with the defendant upon settlement, in which the parties would reflect their rights and obligations, the status of the inhabited dwelling, grounds, order of residence, eviction and other conditions. The case materials reliably established that the contract for the rental of office housing between the parties was not concluded. The judicial authorities did not take into account the circumstances that S. had been living in a disputed residential building provided by the employer since 1991, that is, since she was hired at the Orphanage, and when she moved into this dwelling, the relevant documents, in particular the decision of the housing commission or the contract for the rental of office housing, were not drawn up due to the plaintiff's fault. As noted above, the plaintiff's property rights to the disputed residential premises arose on the basis of the decision on the legalization of immovable property dated December 15, 2006 No. 881 and the act on private ownership of the land plot No. 0057511 dated October 23, 2007, registered in accordance with the procedure established by law only on January 11, 2008. The legal grounds for the employer's termination of the lease agreement (sublease) of a dwelling from the state housing stock and eviction without providing another dwelling from the state housing stock are regulated by the norms of Chapter 14 of the Law. At the same time, the eviction of the tenant from the dwelling of the state housing stock is possible only by termination of the lease agreement, therefore, when making a decision on this case, the courts incorrectly applied the norms of Article 111 of the Law. In addition, paragraph 5 of article 120 of the Law states that persons who have worked at an enterprise or institution that provided official housing for at least 10 years may not be evicted from official housing provided before the enactment of this Law, without providing another habitable dwelling. The materials of the case established that S. She has worked at this educational institution for more than 25 years. Due to the above circumstances, the cassation judicial board concluded that in this case the local courts committed significant violations in the application of the norms of current legislation, which was the basis for recognizing the adopted judicial acts as illegal.
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