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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 20, 2006 No. 3

About practice of consideration by courts of disputes on the right to housing, left the owner

(as amended on 31-03-2017)

Due to the questions which arose by hearing of cases in claims of owners for recovery of the rights for ownership, use and the order of the left dwelling, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. In case of the dispute resolution on ownership, use and the order of the dwelling left by owners, courts it is necessary to be guided by provisions of the Civil code of the Republic of Kazakhstan (further - group of companies), the Code of civil procedure of the Republic of Kazakhstan (further - GPK), the Law of the Republic of Kazakhstan of April 16, 1997 No. 94-I "About the housing relations" (further - the Law) and other regulatory legal acts.

2. Excluded

3. Based on Article 250 of group of companies the disclaimer of property can be expressed by the announcement of it or making of other actions (failure to act) definitely testimonial of elimination of the owner from the property right without intention to keep any rights to this dwelling.

The disclaimer of property can proceed only from the citizen or the legal entity who is the owner. The state and its bodies have no right to refuse the property right to the dwelling belonging to them, except as specified alienations in the procedure established by the law.

4. According to article 6 of the Constitution of the Republic of Kazakhstan the property obliges, use of it shall serve the public benefit at the same time.

According to Article 250 of group of companies the disclaimer of property does not stop the rights and obligations of the owner concerning the dwelling. The owner bears burden of its content, obligation on payment of the utility payments and taxes provided by the law. These rights and obligations remain until acquisition of property right to this dwelling by other person.

Making by the owner of the actions testimonial of disclaimer of property without intention to keep any rights to this dwelling, attracts the termination of the property right only based on the judgment which took legal effect about acquisition of property right to this dwelling by other person.

5. The disclaimer of property by making by the owner of actions for leaving of the dwelling without intention to keep the property right shall be lawful, voluntary and specifically specifying that the owner refuses ownership, use, the order of the dwelling.

Such refusal, in particular, can be expressed by giving by the owner with the consent of members of his family and other joint owners, and also in necessary cases of the bodies performing functions on guardianship or custody, the written application in the office of the akim in the territory of which there is dwelling. The application of the owner for disclaimer of property on the dwelling can be withdrawn, except as specified, when there is judgment which took legal effect about recognition of the dwelling utility property or acquisition by his other person owing to acquisitive prescription.

6. Left (or thrown) the dwelling is called the dwelling concerning which the owner does not make the actions testimonial of intention to keep the property right. The empty dwellings left by the owner unguarded and without fulfillment of duties on its content, etc. belong to such dwellings. Cases of destruction (destruction) of the dwelling are the independent basis of the termination of the property right to the dwelling by a court decision.

The dwelling which has no owner is recognized ownerless court or the owner of which is unknown, or the dwelling to which the owner refused the property right.

7. Item 3 of Article 242 of group of companies determines special rules of acquisition of ownerless real estate (dwelling) in utility property. According to the statement of the office of the akim in the territory of which such property is revealed it shall be accepted on accounting by the body performing state registration of real estate. If the owner refuses the property right by the announcement of it, the local executive body takes a legal action with the requirement about recognition of this thing which arrived in utility property from the moment of the announcement of refusal.

After one year from the date of registration, in the claim of body, authorized to manage utility property, the dwelling the judgment can be acknowledged ownerless and arrived in utility property.

If claim is submitted before the expiration of year, then it is not subject to consideration and 152 GPK return based on the subitem 8) of Article part one.

Powers on ownership, use and the order of the dwelling which is not recognized by a court decision arrived in utility property, remain for the owner who left it or pass to the third party owing to acquisitive prescription.

8. By hearing of cases about recognition of the right of utility property to the dwelling courts shall check what dwelling is subject to recognition ownerless, whom and how it is revealed in what time it is registered as ownerless, the proofs testimonial of leaving by the owner of the dwelling without intention to keep the property right, and also to attract akimats, municipal and Tax Services as interested persons.

9. In case of the order the akim the dwelling which is not recognized by a court decision arrived in utility property, the owner can require return of the dwelling or provision by the akim of the equivalent dwelling.

By consideration of the claim of the owner for eviction of person living in its dwelling, the court needs to check the bases of installation of this person in the dwelling. If it was installed according to the order of the akim, then the court needs to recruit him in case with explanation of the right to presentation of the counter action to the owner about the termination of the property right on the bases provided by the law.

In case of satisfaction of the claim of the owner, eviction shall be made with observance of requirements of the Law. The obligation on provision to the evicted person of other dwelling is assigned to akimat provided that this person stayed on the registry needing the dwelling. The evicted person has the right to impose requirement about collection from the owner of expenses (on repair of housing, on its content, etc.).

10. Considering claims for acquisition of property right to the dwelling for the basis of acquisitive prescription, it is necessary to consider availability of set of the circumstances specified in Item 1 of Article 240 of group of companies i.e. fair, open, continuous real estate holding as own within seven years.

Conscientiousness of ownership means that person the owner of the dwelling became lawful, i.e. it appeared at this owner as a result of events and actions which directly are recognized the law, other legal acts, or do not contradict them, but did not receive legal registration (for example, transfer by the owner of the dwelling without observance of the form of the purchase and sale agreement, lease, etc. provided by the law).

Openness of ownership means that person does not take any measures directed to hiding circumstance of ownership of the dwelling bears burden of content of the dwelling, pays utilities, etc.

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