of July 16, 2007 No. 5
About some questions of the dispute resolution connected with protection of the property right to the dwelling
For the purpose of ensuring the correct and uniform application of the legislation on the property right to the dwelling the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. According to Item 1 of article 26 of the Constitution of the Republic of Kazakhstan, Article 191 of the Civil code of the Republic of Kazakhstan (further - group of companies) and article 11 of the Law of the Republic of Kazakhstan "About the housing relations" (further - the Law) in private property of citizens, legal entities any legally acquired dwelling can be. The rights of owners on ownership, use and the order of the dwelling are protected judicially by the methods provided by legal acts.
Because regulations of the Constitution of the Republic of Kazakhstan restriction of the civil laws of the person is allowed only by the laws, other subordinate regulatory legal acts limiting the rights of the owner, are not subject to application.
2. The claim for the property right to the dwelling is made in court in the place of its stay. The claim submitted with cognizance abuse of regulations returns, and accepted to production - goes on cognizance.
Treat claims for the property right to the dwelling: claims for reclamation of the dwelling from others adverse possession; about elimination of violations of the right which is not connected with deprivation of ownership; about recognition of the right to premises; about recognition of the biddings on alienation of the dwelling invalid; about recognition of transactions on alienation of the dwelling invalid and others.
3. According to Item 2 of Article 118 of Civil Code and article 17 of the Law the property right to the dwelling at the acquirer arises from the moment of its state registration by authorized body, however its absence is not the independent basis for recognition of the transaction invalid.
In case of non-compliance with form of the transaction when actually committed transaction is confirmed by others, except the testimony, proofs (for example, the sales slip of the dwelling and receipt of money, or issue of the power of attorney on the alienation right), in case of uncertainty of the location of the seller, the concerned party has the right to take a legal action with the claim for recognition of the transaction valid, with indication of as the defendant of the seller informed by court in the last known place of his residence. In case of refusal vessels in recognition of the transaction valid if the owner made alienation of housing in the established form to the third party, then the claimant has the right to compensation of the incurred expenses.
4. The order right the dwelling at the acquirer arises from the moment of state registration of the property right.
The owner who made the transaction on alienation of the dwelling in the established form having no right to dispose afterwards of it as the specified dwelling is subject of the fulfilled obligation, and the buyer who did not make state registration is recognized his legal owner.
5. In case of dispute over motive of improper execution by the buyer of the obligation on payment, the acquired dwelling, after its state registration the seller, based on Item 3 of Article 439 of group of companies having the right to require payment of cost of the sold dwelling and penalty according to Article 353 of group of companies.
If the law or the agreement provide agreement cancelation with return received by the parties, registration of the property right is not obstacle for agreement cancelation on the bases, stipulated in Article 401 groups of companies. In this case the parties have the right to require, except return of the dwelling, compensation of the caused losses.
6. Courts need to find out the specific bases of invalidity of transactions specified in Articles 158 - 160 groups of companies. At the same time it must be kept in mind that Articles 157, of 157-1 group of companies contain the general rule about invalidity of the transaction and effects of its invalidity and are not the independent bases for recognition of the transaction invalid.
7. No. 7 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 20.04.2018
8. In case of recognition of the transaction invalid based on making by her face, afterwards acknowledged incapacitated, or on the bases specified in Items 6-11 of Article 159 group of companies, the court applies the effects provided by Items 3, of 4, of the 5 and 6 Article 157-1 of group of companies only in the claim of persons specified in group of companies.
9. In case of permission of the claim for reclamation of the dwelling from others adverse possession by the claimant which right to claim proceeds from invalidity of the transaction as made by incapacitated person, and also availability of the bases specified in Article 158 of group of companies, Items 1-3 of Article 159 of Civil Code, Article 160 of group of companies, or illegality of the act of state body, court, in case of the requirement about recognition of the transaction or the act to the invalid, having the right to give assessment such transaction or the act of state body. At the same time the court needs to consider that if person acquired the property right to the dwelling based on the transaction, acknowledged invalid or the act of the state body which was not conforming to requirements of the legislation, then legal basis for reclamation of the dwelling is not available for it.
10. If by consideration of the claim for reclamation of the dwelling from others adverse possession it becomes clear that it is based on invalidity of the transaction which is commited by person afterwards acknowledged incapacitated or in the cases specified in Items 6-11 of Article 159 of group of companies, then the court has no right on the initiative to recognize it invalid.
11. The claim for recognition of the property right to self-willedally built dwelling is made to local executive body and is considered by court according to the procedure of claim production. The satisfaction of such claim is possible under condition if preserving construction does not entail violation of legitimate interests of other persons or will not create threat of life and to health of citizens. These conditions shall be confirmed by bodies, authorized to perform the state acceptance of the finished construction objects.
12. By consideration of the claim for recognition of the property right to the apartment house which is self-willedally built on the parcel of land which is not taken away for these purposes it can be satisfied only provided that this site will be provided to the claimant in the procedure established by the law.
In this regard the judge in stage of preparation of case for legal proceedings should suggest the claimant to produce the evidence that the parcel of land will be provided to it and that the structure meets town-planning and construction standards and rules. The documents on the consent of provision issued by the akim and authorized bodies to the claimant of the parcel of land and structure compliance to regulations and rules can be such proofs.
Or with violation of town-planning and construction regulations and rules, stipulated in Clause 240 groups of companies the acquisitive prescription does not extend to self-willedally built apartment house located on illegally occupied parcel of land and built without obtaining on it necessary permissions.
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