For a structure to be recognized as unlawful, it must be an unauthorized construction

A claim for recognition of ownership rights to an unauthorized structure shall be considered under contentious proceedings, since an interested person applies for protection of an infringed or disputed right or legitimate interest by resolving a dispute concerning the right.

Paragraph 11 of the Regulatory Resolution “On Certain Issues of Resolving Disputes Related to the Protection of Ownership Rights to Housing” provides comprehensive clarifications on this issue.

Thus, claims for recognition of ownership rights to an unauthorized structure shall, in all cases, be filed with and considered by courts under contentious proceedings.

Jurisdiction

Pursuant to Part 1 of Article 31 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC), claims concerning rights to land plots, buildings, premises, structures, other objects firmly connected to land (immovable property), and other matters shall be filed at the location of such objects.

Accordingly, disputes concerning the recognition of ownership rights to an unauthorized structure shall be considered at the place where the disputed immovable property is territorially located.

Where one of the parties to the proceedings is an individual, such claims shall be considered by district courts.

Where the parties to the proceedings are individuals carrying out individual entrepreneurial activities without establishing a legal entity and legal entities, the claim shall fall within the jurisdiction of specialized inter-district economic courts pursuant to Part 1 of Article 27 of the CPC.

Persons Participating in the Proceedings

Claims for recognition of ownership rights to an unauthorized structure shall be considered by courts under contentious proceedings and shall be brought against the local executive body.

The respondents in such cases shall be the akims of the relevant administrative-territorial units who head the local executive body.

Depending on the category of the dispute, such claims may be brought against the owner of the land plot or against the developer (the person who erected the unauthorized structure).

Courts should take into account that where an unauthorized structure was constructed by contracting organizations, the respondent shall be the customer, as the person at whose instruction the unauthorized structure was constructed.

In each particular case, the composition of third parties whose participation is necessary for the proper resolution of the case shall be determined by the court based on the subject matter and grounds of the claimant’s claims, the respondent’s objections, and the laws applicable to the dispute.

It should be taken into account that the decision rendered in the case may affect the scope of the rights and obligations of such persons.

State Duty

Pursuant to Article 607 of the Tax Code of the Republic of Kazakhstan, the state duty is a mandatory payment levied for the performance of legally significant actions and/or the issuance of documents by authorized state bodies or officials.

Under Article 149 of the CPC, a document confirming payment of the state duty shall be attached to the statement of claim.

Subparagraph 11) of Part 1 of Article 104 of the CPC provides that, in claims concerning ownership rights to immovable property, the value of the claim shall be determined based on the market value of such property at its location as of the date the claim is filed.

Civil-law disputes concerning ownership rights to unauthorized structures constitute claims of a proprietary nature and, accordingly, are subject to monetary valuation.

The disputed property constitutes a tangible asset and has a monetary value; therefore, the value of the claim shall be determined based on its market value.

Pursuant to Subparagraph 1) of Paragraph 1 of Article 610 of the Tax Code, unless otherwise provided for by this paragraph, the state duty on statements of claim of a proprietary nature shall be levied as follows:

• 1 percent of the amount of the claim for individuals;
• 3 percent of the amount of the claim for legal entities.

When filing a claim for recognition of ownership rights to an unauthorized structure, the state duty shall be paid based on the value of the property, with documents confirming its market value attached to the statement of claim (an appraisal report, information certificates concerning the market value of the immovable property).

The provisions of Part 1 of Article 109 of the CPC concerning the allocation of court costs, with such costs being awarded to the party in whose favor the decision was rendered, shall not apply to this category of cases where claims for recognition of ownership rights to an unauthorized structure are brought against a local executive body. Courts shall not recover from local executive bodies, in favor of claimants, expenses incurred in payment of the state duty.

The position that should be taken as a basis is that the claimant has chosen judicial protection of his or her rights, while the respondent in such cases has not infringed the claimant’s substantive rights.

The Supreme Court previously provided clarifications on this issue, including in the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases.”

These clarifications have also been reflected in regional case-law reviews, which may indicate their widespread application in judicial practice and the absence of difficulties among courts in this regard.

At the same time, there have been cases where courts accepted claims for proceedings and considered cases without an appraisal of the market value of the immovable property, or where only the title page of an immovable property appraisal report was available, while the research section of the report, containing the approaches and methods used, the description, technical and structural characteristics, and other information concerning the property under examination, was absent from the case materials.

Practice in the Application of Substantive Law

Pursuant to Article 23 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC), courts, in civil proceedings, shall hear and resolve cases concerning the protection of infringed or disputed rights, freedoms and legitimate interests, unless their protection is carried out under another procedure in accordance with the law.

Recognition of ownership rights to an unauthorized structure through judicial proceedings constitutes an exceptional remedy for the protection of rights. It may be applied where a person who has applied to the court, for a reason beyond his or her control, was unable to obtain title documents for a newly constructed or reconstructed immovable property in the manner established by regulatory legal acts governing relations in the field of urban planning and relations concerning land use.

Such a claim may not be used to simplify the registration of rights to a newly constructed immovable property for the purpose of circumventing the provisions of special legislation establishing a permitting procedure for the construction and introduction into civil circulation of new immovable property.

Pursuant to the Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan” (hereinafter – the Law on Architecture), the construction (reconstruction, restoration, extension, technical re-equipment, modernization, and major repairs) of facilities and their complexes shall be carried out on the basis of design (design and estimate) documentation (hereinafter – the Design Documentation) developed in accordance with duly approved detailed planning projects and development plans based on the master plan of the settlement (or a substitute scheme for the development and construction of settlements with a population of up to five thousand people).

Pursuant to Paragraph 1 of Article 63 of the Law, the Design Documentation for the construction of new buildings and structures and their complexes shall contain urban planning justification for the location of the facility, as well as economic, architectural, spatial-planning, functional, technological, structural, engineering, environmental protection, energy-saving and other solutions to the extent necessary for carrying out construction and commissioning the completed construction facility.

Paragraphs 2 and 4 of Article 73 of the Law provide that acceptance and commissioning of a constructed facility shall be carried out by the customer upon its full readiness, in accordance with the approved design, and provided that there is a declaration of conformity, conclusions on the quality of construction and installation works, and on the conformity of the completed works with the approved design.

The full readiness of a constructed facility shall be determined in accordance with the Rules for the Organization of Development and the Completion of Permitting Procedures in the Construction Sector.

Acceptance of a constructed facility for commissioning shall be documented by an acceptance certificate. The acceptance certificate for the constructed facility shall be subject to approval. The acceptance certificate shall be approved by the customer. The date on which the acceptance certificate for the facility is signed shall be deemed the date of its approval and the date on which the facility is commissioned.

By Order No. 867 of the Minister for Investments and Development of the Republic of Kazakhstan dated December 13, 2017, the Rules for the Acceptance of a Constructed Facility for Commissioning by the Owner Independently, as well as the relevant forms of the acceptance certificate, were approved.

Thus, pursuant to the provisions of the Law, owners of land plots shall independently carry out the acceptance for commissioning of a completed residential building. The basis for registering rights to the constructed building is the acceptance certificate for the constructed facility.

The procedure for acceptance of a constructed facility, as well as the form of the acceptance certificate for a constructed facility accepted for commissioning independently by the owner, shall be approved by the authorized bodies responsible for architecture, urban planning and construction.

The acceptance certificate for a constructed facility accepted for commissioning independently by the owner shall be subject to mandatory registration with local executive bodies performing functions in the field of architecture, urban planning and construction.

It follows from the above that the owner of an unauthorized structure must apply to the authorized bodies in the field of architecture, urban planning and construction in accordance with the procedure provided for by Chapter 9 of the Law.

If the authorized body in the field of architecture, urban planning and construction refuses to issue technical documentation confirming the structure’s compliance with the established urban planning and construction norms and rules, the owner of the structure shall have the right to apply to the court to challenge the actions (inaction) of the state bodies in accordance with the procedure established by the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter – the APPC).

Courts generally substantiate their decisions by referring to the provision contained in Article 244 of the Civil Code of the Republic of Kazakhstan, relying on the technical examination of the reliability and stability of the residential structure submitted by the claimant, as well as on the absence of any other possibility of recognizing ownership rights to the unauthorized structure.

At the same time, such cases are not subject to judicial consideration due to the absence of a dispute.

Regulatory Legal Framework

The principal regulatory legal acts governing the recognition of rights to an unauthorized structure and subject to application when considering cases of this category are:

• Constitution of the Republic of Kazakhstan;
• Civil Code of the Republic of Kazakhstan (hereinafter – the CC);
• Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC);
• Land Code of the Republic of Kazakhstan (hereinafter – the Land Code);
• Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan” (hereinafter – the Law on Architecture);
• Law of the Republic of Kazakhstan “On Local Government and Self-Government in the Republic of Kazakhstan” (hereinafter – the Law on Local Government);
• Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter – the Administrative Offenses Code);
• Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (Tax Code) (hereinafter – the Tax Code);
• Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, “On Certain Issues of the Application of Legislation on Ownership Rights to Housing” (hereinafter – the Regulatory Resolution “On Certain Issues of the Application of Legislation on Ownership Rights to Housing”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007, “On Certain Issues of Resolving Disputes Related to the Protection of Ownership Rights to Housing” (hereinafter – the Regulatory Resolution “On Certain Issues of Resolving Disputes Related to the Protection of Ownership Rights to Housing”);
• Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007, “On Certain Issues of the Application by Courts of Land Legislation” (hereinafter – the Regulatory Resolution “On Certain Issues of the Application by Courts of Land Legislation”);
• Regulatory Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases” (hereinafter – the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009, “On Certain Issues of the Application by Courts of Legislation on Inheritance” (hereinafter – the Regulatory Resolution “On Certain Issues of the Application by Courts of Legislation on Inheritance”);
• Rules for the Organization of Development and the Completion of Permitting Procedures in the Construction Sector, approved by Order No. 750 of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 (hereinafter – the Rules for the Organization of Development);
• Construction Norms and Rules of the Republic of Kazakhstan (SNiP RK) regulating relations in the field of architecture, urban planning and construction.

When considering disputes, the regulatory legal acts that were in force at the time the relevant legal relations arose shall be applied.

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