NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 25, 2006 No. 8

About some questions of application by courts of the legislation on compulsory acquisition of the parcels of land for the state needs

Due to the need of uniform application of the legislation by courts by consideration of civil cases about compulsory acquisition at the non-state land user or the owner of the parcels of land for the state needs the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. In case of permission of cases on compulsory acquisition of the parcels of land for the state needs courts need to mean that the legislation on the specified legal relationship is based on the Constitution of the Republic of Kazakhstan and consists of the Civil code of the Republic of Kazakhstan (further - group of companies), the Land code of the Republic of Kazakhstan (further - the Land code), the Law of the Republic of Kazakhstan "About state-owned property" (further - the Law on state-owned property), the Law of the Republic of Kazakhstan "About the housing relations" (further - the Law on the housing relations), and also the laws of the Republic of Kazakhstan "About local public administration and self-government in the Republic of Kazakhstan", "About individual housing construction", "About architectural, town-planning and construction activities in the Republic of Kazakhstan", "About estimative activities in the Republic of Kazakhstan" and other regulatory legal acts.

2. Claims for disputes are made by executive body in district (city) court in the location of the parcel of land which is subject to compulsory acquisition for the state needs. At the same time courts should mean that the local executive body according to Article 88 of the Land code, Item 7 of Article 65 and item 4 of article 69 of the Law on state-owned property has the right to take a legal action with the corresponding claim if:

the owner or the non-state land user does not agree with the resolution on the beginning of compulsory acquisition of the parcel of land for the state needs or other real estate in connection with withdrawal of the parcel of land for the state needs;

with it the agreement on cost for the withdrawn parcel of land or other conditions of compulsory acquisition of the parcel of land is not reached;

the devolution agreement of property, including with persons whose rights concerning the withdrawn property in case of compulsory acquisition will be stopped or limited is not reached.

In cases when in claims defendants specify the owners, land users who are the non-state legal entities, citizens performing business activity without formation of legal entity, using housing construction or the parcel of land for business activity, such claims are made in specialized interdistrict economic courts.

3. In case of the solution of question of adoption of the statement the judge should check accomplishment by the claimant of requirements of Articles 150 and 151 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK). In case of presentation of the claim without specifying of data on delivery of the notification and the offer to the owner of other equivalent parcel of land, the well-planned dwelling or monetary compensation, it is necessary to leave the action for declaration without movement according to the procedure of Article part one 155 GPK with provision of term for statement in the claim of circumstances on which the claimant bases the requirements, and proofs confirming these circumstances.

4. By preparation of case for legal proceedings the judge checks availability, and if necessary suggests the parties to produce the following written proofs:

1) the order of the Government, local executive body about compulsory acquisition of the parcel of land for the state needs with appendix of the statement from the master plan of the city (settlement) regarding construction of facilities falling under the list of exceptional cases, stipulated in Item 2 Articles 84 of the Land code;

2) the written notice of body of the made decision with indication of date of its direction to the owner, non-state land user and mark about obtaining;

3) the agreement of privatization, purchase and sale, donation and (or) others identification, documents of title on the property right or land use to the parcel of land, housing construction, and also the act of acceptance of housing construction in operation, technical data sheet, plans of housing construction and the parcel of land, data of the legal inventory on state registration of the rights to real estate and transactions with it;

4) the valuation report, the title document (the purchase and sale agreement, donations, etc.) or other document confirming market value of the parcel of land and the real estate which is on it or cadastral (estimative) cost in case of absence in the civil agreement of the price for the parcel of land;

5) the document confirming offers of local executive body on provision of other equivalent parcel of land, the well-planned dwelling.

5. Requirements of the defendant to the claimant about provision of other equivalent parcel of land, the well-planned dwelling instead of the monetary compensation offered by the claimant are not demands in reconvention. Therefore all questions connected with the choice by the owner of form of compensation shall be considered by court within the claim declared by local executive body and with observance of requirements of Item 6 of article 67 of the Law on state-owned property, Article 88 of the Land code, Article 15, of Item 2 of Article 29 and article 119-1 of the Law on the housing relations, and also other regulations protecting the rights of the owner.

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