of October 2, 1997 No. 11
About court practice according to the dispute resolution, the citizens connected with the property right to the apartment house
The property of citizens on the apartment house is protected by the state. The owner at discretion owns, uses and disposes of the property belonging to him. The correct and timely permission courts of the disputes connected with the property right of citizens to the apartment house is one of guarantees of protection of this right. By generalization of court practice according to the dispute resolution, connected with the property right to the apartment house it is determined that courts by hearing of cases of this category generally fulfill requirements of the law on protection of property of citizens of the apartment house, respect the rules of substantive and procedural law.
At the same time in work of the courts by hearing of cases of this category there are shortcomings. Mistakes in case of determination of jurisdiction and cognizance of disputes on the property right to the apartment house with factual determination of ownership of the house on the property right are made. In an inadequate way requirements of the Art. 143 GPK of Turkmenistan are fulfilled by preparation of cases for legal proceedings.
So in particular, by preparation of cases for legal proceedings in claims for the property right to part of the apartment house, for the Section of structure in nature and about procedure for use of the apartment house documents of title, proofs of the arrangement on creation of common property and extent of participation of each of the parties are not always requested; opinion of the organizations to which the parcel of land for construction of the house and the consent of loaner to repayment of debt by other participants of construction of the house was allocated; the technical conclusion of specialists about possible versions of the Section of the apartment house in nature between owners according to their shares, and also household re-equipment costs, etc.
Also courts not always fulfill requirements of the Art. 194 GPK of Turkmenistan about need of removal of legal and reasoned decisions. Quite often in motivation part do not specify the circumstances established by court the laws by which the court was guided and the substantive provisions are stated not absolutely clearly, is not specified what isolated part of the house specifically is allocated also what share in the house it constitutes. Therefore there are disputes in case of execution of the decision. Considering the above, and also availability of questions, not clear for courts, on application of the legislation in case of permission of the called disputes, the Plenum of the Supreme Court of Turkmenistan
1. Courts shall mean that they in property of citizens can be apartment at home, constructed on the allocated site or acquired on legal causes, for example, according to the purchase and sale agreement, donations, exchanges, on inheritance right.
2. Disputes with the property right to the apartment house are subordinated to courts, in particular:
a) about recognition of the property right to the house or its part (share);
b) about share apportionment from the house (the Section of the house) belonging on the right of common ownership to several persons or on the right of joint property to spouses;
c) about superstructure, extension or reorganization of the house and subsidiary structures if there is permission of body of the local executive authority, but other participants of common ownership object to it;
d) about determination of procedure for use of the house;
e) about eviction and installation;
e) about change of the size of shares of the house which is in common ownership;
g) about the right to preferential purchase of share in common ownership on the house;
h) about recognition invalid purchase and sale agreements, exchange, donation of the house, etc.
Quarrels about recognition of the property right to the apartment house registered addressed to other person are also subordinated to court.
According to the Art. 119 GPK of Turkmenistan claims and the right to structures are jurisdictional to court in the location of structure. The specified cognizance cannot be changed by the agreement of the parties.
3. Disputes on recognition of the property right to self-willedally built houses and subsidiary structures, and also on demolition of such structures are not subject to consideration by courts. In case of permission of case on the claim of hyakimlik on uncompensated taking based on Art. 107 of Civil Code of Turkmenistan of self-willedally built house or part its court shall consider only the declared requirement, but has no right to resolve question of feasibility of demolition of the house instead of transfer it in fund of body of the local executive authority.
The court resolves issue of deprivation of right to use by living space in the withdrawn house if the claim is declared it. As defendants in such claim the citizen, self-willedally constructed house and persons living with it are attracted.
Transfer of self-willedally built house in housing stock of body of the local executive authority does not deprive of the citizen who self-willedally built the house of m of persons of residence right living with it in this house according to the employment contract of premises.
4. Participation of persons, foreign to the builder, in construction of the individual house cannot form the basis for recognition behind them of the property right to part of the built house of the costs made by them. In some cases taking into account all facts of the case courts can recognize for specified persons of the property right to part of the house. At the same time it is necessary to check carefully the valid relations of the parties, to establish the reasons for which the construction of the house was made with participation of persons applying for recognition behind them of the property right to part of the house whether there was between the parties arrangement on creation of common property on the house. 5. The fact of assistance in itself to the builder from members of his family or relatives in construction of the house cannot be reason for satisfaction of their claims to the builder about recognition of the property right to part of the house.
Such claim can be satisfied with court only when between these persons and the builder there was arrangement on creation of common property on the apartment house and for this purpose they put the work and means in construction of the apartment house.
6. The court can satisfy taking into account specific circumstances the claim for recognition for certain members of the family of common property to jointly the house acquired according to the purchase and sale agreement if it is determined that between these persons and the family member specified in the agreement as the buyer the agreement on joint purchase of the house was reached and for this purpose family members made the investments in its acquisition.
In case of satisfaction of the claim of persons, or members of his family or relatives, foreign to the builder, for recognition behind it of the property right to part of the house, the court determines the size of their share depending on extent of participation in construction of the house, costs made by them and also from investments made by them and other circumstances.
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