On some issues of application of the seizure of land laws by the courts for public needs

  1. On the order of land from state ownership to private individuals
  2. On the order of the land from the state property to legal entities
  3. On the procedure for re-registration of land for individuals
  4. On the procedure for re-registration of the land plot for legal persons
  5. On the procedure for granting land to returnees (oralmans)
  6. Addresses and телephone numbers of the regional branches of enterprises PSCLC
  7. Addresses and phone controls on land relations
  8. Addresses and телephone numbers Citizen Service Centers
  9. On some issues of application of the seizure of land laws by the courts for public needs

 

Due to the need for a uniform application of the law courts in civil cases of withdrawal, including through the purchase, from a private owner or land user of land for public needs Plenary Supreme Court of the Republic of Kazakhstan decrees:

  1. In resolving cases of withdrawal (redemption) of land for public needs the courts should bear in mind that the legislation on specified legal relationship based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to & mdash; the Civil Code), the Land Code of the Republic of Kazakhstan (hereinafter referred to & mdash ; Land Code), the Law of the Republic of Kazakhstan & laquo; About the housing relations & raquo; (Hereinafter & mdash; Law on Housing Relations) and the Republic of Kazakhstan laws & laquo; About the local government in the Republic of Kazakhstan & raquo ;, & laquo; About individual housing construction & raquo ;, & laquo; about architecture, urban planning and construction activities in the Republic of Kazakhstan & raquo ;, & laquo; On appraisal activities in the Republic of Kazakhstan & raquo ;, & laquo; About the status of the capital of the Republic of Kazakhstan & raquo ;, & laquo; About the special status of Almaty & raquo; and other normative legal acts.
  2. Claims on disputes imposed by the executive body of the district (city) court on the location of the land to be seized for public needs. At the same time, courts should bear in mind that the local executive body taking the decision on withdrawal (redemption) of land may, in accordance with Article 88 of the Land Code, to present to the court a relevant action only if the owner or the land user does not agree with the decision to purchase his land for public needs, or with him is no agreement on the price of redeemable land or other repayment conditions.

    Where in suits respondents indicated owners, land users, which are non-legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using house-building or land for business activities, such actions are brought in the specialized inter-district economic court.

  3. In deciding whether to accept the application judge should verify the claimant requirements of Articles 150 and 151 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to & mdash; GIC). Where an action without specifying the details of the notice and demand to the owner of an equivalent plot of land, well-maintained housing or monetary compensation, a claim should be left without a motion by way of the first part of Article 155 of the Code of Civil Procedure with the provision of time limit for presentation of the claim in the circumstances on which the plaintiff bases their requirements and the evidence confirming these circumstances.
  4. When preparing the case for trial the judge checks and, if necessary, invite the parties to submit the following documentary evidence:

    • decision of the local executive body of the withdrawal (redemption) of land for public needs with the application of the extract from the general plan of the city (locality), the plan of detailed planning, zoning schemes and other duly approved town planning or land documents;
    • written authority notice of its decision indicating the date of its sending to the owner, non-state land user and a note on the receipt;
    • the contract of privatization, sale, donation, and (or) other documents of title of ownership or land use on land, housing construction, as well as the instruments of acceptance housing into operation, technical passport, plans of houses and land, the attention of the legal inventory of state registration rights to real estate and transactions with it;
    • an evaluation report or other document confirming the market value of land or rights to it and who is on it of real estate, as well as the calculation of the amount of compensation, including all damages caused to the owner or land user in connection with the withdrawal (redemption) of land, as well as losses they incur in connection with the early termination of obligations to third parties, and lost profits;
    • a document confirming the proposals of the local executive authority to grant an equivalent plot of land, well-maintained home.
  5. Requirements for the defendant to the plaintiff for an equivalent plot of land, well-maintained home in exchange of monetary compensation offered by the plaintiff are not counter-claims. Therefore, all the issues related to the choice of the owner of the forms of payment, should be considered by the court as part of the claimed local executive body of the claim and subject to Article 87, Article 88, paragraph 3 of the Land codeeksa requirements, article 15, paragraph 2 of Article 29 and Article 119-1 of the Law on Housing relations, as well as other rules that protect the rights of the owner.
  6. The courts in the resolution of the dispute should be guided by paragraph 3 of Article 26 of the Constitution of the Republic of Kazakhstan, according to which the expropriation of property for public use in extraordinary cases stipulated by law may be exercised on condition of its equivalent compensation. Also, please note that the Constitutional Council of the Republic of Kazakhstan 1 July 2005 adopted a resolution number 4 & laquo; About official interpretation of Item 3 of Article 26 of the Constitution of the Republic of Kazakhstan & raquo;.

    It should be borne in mind that, by virtue of paragraph 5 of Article 188 of the Civil Code of ownership of the property can be forcibly terminated only on the grounds provided by legislative acts. For example, pursuant to subparagraph 5) of paragraph 2 of Article 249 of the Civil Code compulsory withdrawal from the owner of the property is subject to the alienation of immovable property in connection with the seizure of land.

    Termination of ownership of real estate in connection with the decision of a public authority to withdraw the land, which are owned by the owner of the house, other buildings, structures or spaces, in accordance with paragraph 1 of Article 255 of the Civil Code shall be permitted only in cases and order established by legislative acts, with the presentation to the owner equal property and compensation for other losses incurred or refund it in full damages caused by the termination of property rights.

    Grounds for termination of private ownership of land or land use rights by virtue of subparagraph 2) of paragraph 2 of Article 81 of the Land Code is a seizure, including the ransom, from a private owner or land user of land for public needs. Powered by paragraph 2 of Article 84 of the Land Code of the list of grounds for withdrawal or redemption land for public needs is not exhaustive. However, other reasons for withdrawal or redemption land for public needs can only be provided by legislative acts.

    If the proceedings it is established that the decision of the local executive body of the withdrawal (redemption) of land is not due to public needs, or the decision was made by an unauthorized entity (organization, person), as well as if it does not comply with the general plan of the city (village), the court He denies the claim.

  7. Failure to comply with the rules of the claimant written notice of land ownership legislation and non-state land user to redeem the land (land use rights) for state needs at least a year, and in the cities of Astana and Almaty & mdash; not later than three months prior to the coming redemption, as well as the violation of the legislation on the presentation of such a claim within two years from the date of the owner of the plot or the land user notifications are the basis for refusal by the court to satisfy the claim, since the extension and restoration of these terms of legislative acts provided.

    Re-written notice to the owner of the land or non-state land user on redemption land for public needs is not provided by the legislation, it does not extend, not stop, will not stop and does not alter the terms established by legislative acts of purchase of land.

  8. Courts should check the measures taken by the local authorities before applying to the court to resolve questions about the price of redeemed land or other conditions of redemption. Resolution of these issues is the responsibility of the local executive body, took the decision on withdrawal (redemption) of land. Thus, in accordance with Articles 15 and 119-1 of the Law on Housing Relations to the owner before the demolition of the home of his choice in the private comfortable housing or be paid compensation in the amount of the market value of the home.

    Having established in court that the claim for exemption of land presented by the local authorities without an offer to the owner of another equivalent land plot or of decent dwelling, courts should defer the case hearing in accordance with Article 189 of CPC to resolve the issue.

  9. The courts must bear in mind that well-appointed home in lieu of the land with the house-building located on it is transferred to the local executive body in the property free of charge. Inconsistency cost provided the cost of the demolished houses is not a reason to reject the claim.

    By virtue of paragraphs 2 and 3 of Article 15 of the Law on Housing Relations if the value provided by the home exceeds the value of the demolished, in their cost difference is not levied on the owner, if the value of the demolished houses exceeds the value provided, the difference in their value is compensated to the owner.

  10. When the resolution of disputes on the eviction of citizens with the provision of other comfortable dwelling in connection with the withdrawal (redemption) of land for public needs the courts should not satisfy such claims, if the executive authority granted to the owner of residential premises for temporary residence (temporary housing) or unimproved home.
  11. Comfortable housing, land transfers and the financial compensation shall be paid prior to the termination of property rights, and only those persons who are the owners of seized (redeemed) facilities.

    If the land is owned by several owners on common ownership, each of them is entitled to the ownership of a separate plot of land and (or) to other compensation under the legislation.

  12. In a research report, written consultations of specialists and other documents related to the evaluation activities, the courts should verify their compliance with the provisions of normative legal acts providing for the procedure and methodology for assessing the market value of the land (land rights), housing, other real estate, as well as other property to be assessed. It should be borne in mind that the amount of monetary compensation for the deleted land can not be determined on the basis of its normative or cadastral rates, because they do not reflect the market value of the land.

    Documents related to the evaluation activities do not have a predetermined force and are subject to assessment by the court along with the other evidence in the case.

    If the evaluation documents provided by the parties, there are differences as a result of which it is not possible to find out the amount of compensation for the property is withdrawn, the court may be called an expert in assessment activities to give written advice.

    The courts must also be taken into account that the evaluator must have a license to carry out assessment activities and the right to independently apply the methods of assessment, as required by law.

    The evaluation can not be carried out by the appraiser, if:

    • on the assessment of the evaluator object has either acquires or in rem rights of obligation is the contract;
    • Appraiser is a shareholder, founder, employee, owner, participant, creditor, debtor, sponsor of the legal person - the customer;
    • Estimator - an individual who is a close relative or in-law with the customer - natural person
    • .

    The judicial acts should be given reasons for which the courts make an evaluation document as evidence, or reject it.

  13. The courts in resolving disputes on the definition of the monetary compensation resolved all issues of compensation to the owner of the losses caused by the termination of ownership rights in connection with the seizure of land for public needs, and the property is valued based on its market price.

    Exploring the question of the price of the redeemable land, the courts in accordance with paragraph 2 of Article 87 of the Land codeeksa should be aware that it includes the market value of land or rights to it and who is on it of real estate, as well as all damages caused to the owner or land user due the loss of land, including the losses they incur in connection with the early termination of obligations to third parties. In determining the market value of objects should be guided by Article 2 of the Law of the Republic of Kazakhstan & laquo; On appraisal activities in the Republic of Kazakhstan & raquo ;. If the deleted plot of land or the right to it subject to redemption at the state, but the ransom was not made, the market value of the land at a price not included.

    Courts should be borne in mind that, along with the land, the planned buildings, perennial greenery and other objects of the real estate is also taken into account the market value of household buildings and elements of improvement, the erection of which in accordance with paragraph 2 of Article 68 of the Law of the Republic of Kazakhstan & laquo; About architectural, urban planning and construction activities in the Republic of Kazakhstan & raquo; is not required to obtain permission from the local executive bodies.

    However, in accordance with Article 86 of the Land codeeksa courts should examine the question bears if the owner (land user) the risk of attributing to it the costs and losses associated with new construction, expansion or renovation of buildings (structures) on the land since the adoption of the local the executive body of the decision to repurchase the land.

    Compensation for the deleted plot payable to participants of the housing condominium, is determined taking into account the size of the share, unless otherwise provided by the owners of the agreement, the ratio of usable area of ​​residential premises or area of ​​non-residential premises located in the separate (individual) property, the total area of ​​the whole house, as by virtue of paragraph 3 of article 31 of the Law on housing relations, the share of each owner of the premises in the common property is inseparable from the separate (individual) property belonging to him on the premises.

    Do not be a ground for refusal to pay compensation for the deleted land owner having documents certifying the right to land, given to him prior to the introduction of the Land codeeksa in accordance with the previous legislation, as they, in accordance with paragraph 9 of Article 170 of the Land codeeksa remain valid for the changes in land rights established by the land legislation.

  14. In the case of satisfaction of the claim for exemption through the purchase of land for public needs to courts, by virtue of paragraph 1 of Article 15 of the Law on Housing Relations, should be in the operative part of the judgment to indicate that the issue of execution of decisions of the owner of the eviction and demolition of residential houses should be decided only after of his well-ordered home or monetary compensation.
  15. According to article 4 of the Constitution of the Republic of Kazakhstan currently a regulatory decision is included in the law in force, and is obligatory and comes into force from the date of publication.

Chairman of the Supreme Court of the Republic of Kazakhstan

K. Mami

Judge of the Supreme Court of the Republic of Kazakhstan, Acting Secretary of the plenary session

A.KASIMOV