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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of July 16, 2007 No. 6

About some questions of application by courts of the land legislation

(as amended on 19-01-2018)

For the purpose of the correct and uniform application of the land legislation the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. The legislation on the questions regulating land legal relationship is based on the Constitution of the Republic of Kazakhstan and consists of the Land code of the Republic of Kazakhstan (further - the Land code) and the regulatory legal acts of the Republic of Kazakhstan adopted according to it.

The property relations on ownership, use and the order of the parcels of land, and also on transactions with them are regulated by the civil legislation of the Republic of Kazakhstan if other is not provided by the land, ecological, water legislation, the legislation on subsoil, on plant and animal life and on especially protected natural territories of the Republic of Kazakhstan.

The regulatory legal acts accepted before enforcement of the Land code governing land relations are applied in the part which is not contradicting this code.

2. The disputes following from land legal relationship are considered judicially.

It is necessary to understand the relations on use and protection of the earth connected with management of land resources, fixing of the parcels of land to certain subjects, implementation of the property right and other land rights as land legal relationship.

Requirements belong to claims (statements) following from land legal relationship, in particular: about contest of legality of acts of state bodies on provision of the parcels of land and on their withdrawal (Chapters 2, 3, 4, 5, 9 Land codes); about indemnification in connection with seizure of land (Chapters 2 and 20 of the Land code); about contest of the property right and land use (Chapters 3 and 4 of the Land code); about appeal of procedure for provision by akims of the parcels of land (Article with 43 on 47 Land codes); about appeal of the agreement of pledge (Chapter 8 of the Land code); about seizure of land according to Articles 92, 93, 94 Land codes; about establishment or the termination of the servitude (Chapter 7 of the Land code); about refusal in registration and issue of the state acts certifying the property right or the right of land use to the parcel of land and others.

3. According to Item 1 of Article 117 of the Civil code of the Republic of Kazakhstan (further - group of companies) the parcels of land belong to real estate. With respect thereto claims for the rights to the parcels of land shall be shown in court according to part one of Article 31 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) in the place of their stay.

Claims for the rights to the parcels of land in which the parties are the physical persons performing individual business activity without formation of legal entity and legal entities are considered by specialized interdistrict economic freighters in the location of the parcel of land.

4. By preparation of case for legal proceedings courts should establish nature of relations of the parties, the reasons and time of emergence of disputable legal relationship, to suggest the parties to provide title and identification documents on the parcel of land.

The title document on the parcel of land – the document confirming occurrence of dispositive facts (legal structures) based on which arise the rights to the parcel of land, including agreements, decisions of the courts, legal acts of executive bodies, the certificate on the right to inheritance, the transfer act or the separation balance sheet change or stop by reorganization of the non-state legal entities who are owning the parcel of land on the property right or redeemed the right of temporary paid land use (lease).

The identification document on the parcel of land – the document containing the identification characteristics of the parcel of land necessary for the purposes of maintaining land, legal and town-planning inventories.

Land use belongs to identification documents the act on the right of private property to the parcel of land, the act to the right of permanent land use and the act to the right temporary (paid, non-paid).

Identification documents on the parcel of land are made and issued by the Government for Citizens state corporation keeping the state land cadastre.

Upon transition of the rights to the parcel of land the identification document is transferred to the acquirer or other owner. In case of lack of changes of identification characteristics of the parcel of land by the body performing maintaining the state land cadastre, the new identification document is not issued, and data on transition of the rights to the parcel of land to the land and cadastral book and the unified state register of lands are entered.

Introduction of data on transition of the rights to the parcel of land is made based on the materials represented by the body performing state registration of the rights to real estate.

Title and identification documents on the parcels of land provided to citizens and legal entities before enforcement of the Land Code according to earlier existing legislation of the Republic of Kazakhstan keep legal force taking into account change of the rights to the parcels of land established by the land legislation of the Republic of Kazakhstan.

Replacement of such documents for the documents certifying the property right or the right of land use to the parcels of land according to the Land Code is performed at the request of owners.

5. Courts should check powers of the local executive body which made the decision on provision of the parcel of land in private property or use and also about its withdrawal, according to requirements of Articles 16, of 17, of 18, 19 Land codes. In case of excess by the akim of the powers by provision of the parcel of land its decision can be nullified by court on the bases provided by the law according to the procedure of Chapter 29 GPK.

For this purpose the court establishes the location and borders of the parcel of land, the documents of title on the earth which are part of the territory of the specific settlement, city, area or area are checked.

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