THE ORDER OF THE STATE AGENCY ON REGISTRATION OF THE RIGHTS TO REAL ESTATE UNDER THE GOVERNMENT OF THE KYRGYZ REPUBLIC

of July 27, 2005 No. 107

"About approval of the Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate and transactions with it"

List of amending documents

According to the Law of the Kyrgyz Republic "About state registration of the rights to real estate and transactions with it", and also the Provision "About the State Agency on Registration of the Rights to Real Estate under the Government of the Kyrgyz Republic" approved by the order of the Government of the Kyrgyz Republic of April 19, 2001 No. 183,

I ORDER:

1. Approve the enclosed "Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate and transactions with it".

2. Recognize to invalid:

- the order of the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic of March 6, 2000 No. 19 "About approval of the Temporary practice guidance on registration of the rights to real estate", the registered by the Ministry of Justice of the Kyrgyz Republic on March 14, 2000, registration number 31;

- the order of the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic of August 21, 2000 No. 67 "About approval of the Temporary practice guidance on implementation of system registration of the rights to real estate", the registered by the Ministry of Justice of the Kyrgyz Republic on August 22, 2000, registration number 149;

- the order of the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic of April 11, 2003 No. 42 "About approval of the Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate", the registered by the Ministry of Justice of the Kyrgyz Republic on May 13, 2003, registration number 58-03;

- the order of the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic of August 19, 2004 No. 120, the registered by the Ministry of Justice of the Kyrgyz Republic on September 20, 2004, registration number 104-04;

3. Direct this order to state registration in the Ministry of Justice of the Kyrgyz Republic.

4. This order becomes effective after state registration in the Ministry of Justice of the Kyrgyz Republic and the subsequent official publication in the Tabloid of Normativnye akty Pravitelstva Kyrgyzskoy Respubliki, ministerstv, gosudarstvennykh komitetov, gosudarstvennykh komissy, administrativnykh vedomstv, Sotsialnogo fonda Kyrgyzskoy Respubliki, Natsionalnogo banka Kyrgyzskoy Respubliki i mestnogo samoupravleniya goroda Bishkek Erkin-LLP.

5. Notify the Ministry of Justice of the Kyrgyz Republic on official publication of this order.

 

 

Approved by Gosregistr's order of the Kyrgyz Republic of July 27, 2005 No. 107

Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate and transactions with it

Chapter 1. Introduction

1.1. The purpose of the Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate

Present Practice guidance on state registration of the rights and encumbrances (restrictions) of the rights to real estate (further - the Practice guidance) is developed based on the Civil code of the Kyrgyz Republic (further - the Civil code), the Land code of the Kyrgyz Republic (in further - the Land code), Zakonov of the Kyrgyz Republic "About state registration of the rights to real estate and transactions with it" (further - the Law on registration), "About pledge", "About management of lands of agricultural purpose" and other regulatory legal acts of the Kyrgyz Republic also regulates legal relationship on state registration of the rights and encumbrances (restrictions) of the rights to real estate (further - registration of the rights).

Observance of requirements of present Practice guidance is obligatory when implementing registration of the rights to real estate.

1.2. Terms and determinations

"Owner" - the physical person or legal entity having rights to real estate;

"Attendance registration" - the procedure of implementation of state registration of the rights based on the statement of physical persons and legal entities which is carried out on paid basis;

"The title document" - the document establishing, transferring, limiting or stopping the property right and other rights per unit of real estate (the law, the decision of the relevant competent authority, the agreement, the judgment, etc.);

"Registration zone" - zone of the administrative responsibility and jurisdiction of local registration body which borders are determined by the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic. Borders of registration zone can not match with administrative borders of areas and cities;

"The registration sector" - the constituted part of registration zone having the code;

"Registration quarter" - the constituted part of the registration sector in settlements having the code;

"Structure" - separately built building, construction, the house or other object consisting of one or several parts;

"Geodetic measurements" - measurements in the State Geodetic Network (SGN) of the Kyrgyz Republic;

"Geodetic Item" - the Item (GGS) fixed on the area by signs of the corresponding design and having coordinates in Single State System of Coordinates;

"Technical documentation" - belongs to technical documentation the cadastral plan, technical data sheet, land management case;

"Cadastral plan" - the plan of unit of real estate in the scale where borders of real estate, restriction, its rotary points and distances between them are reflected;

"The documents acceptance specialist" - the employee of local registration body performing receiving and delivery of documents;

"Cartographer" - the specialist of local registration body who is engaged in preparation of indexed cards and assignment of identification codes;

"The legal inventory specialist" - the physical person of the corresponding qualification responsible for collection, the analysis, reconciliation, accuracy of the information connected with the rights per unit of real estate when carrying out system registration;

"The specialist in cadastral topography" (the cadastral topographer) the physical person of the corresponding qualification performing cadastral and topographical works when carrying out system registration;

"Land marks" - the signs of certain sample established on rotary points of the borders passing between the parcels of land belonging to different owners or users;

"Full name of the legal entity" - form of business of the legal entity and his name;

"The beneficial right" is the right of one of the parties of legal relationship to receive certain benefit as a result of the conclusion of the civil transaction or based on the decision of authorized body;

"Beneficial person" is owner who receives certain benefits of material or intangible nature as a result of encumbrance by the corresponding obligations of other person in which property there is other unit of real estate;

"Beneficial unit" is unit of real estate, the owner or the user of which receives certain benefits of material or intangible nature as a result of encumbrance by the corresponding obligations of other person in which property there is other unit of real estate;

"BTI" - Bureau of technical inventory count;

"EIN" - single identification number of physical person.

Chapter 2. State registration of the rights and encumbrances (restrictions) of the rights to real estate

According to the Law on the registration obligatory for state registration the following rights and encumbrances (restriction) are subject:

- property right;

- right of economic maintaining;

- right of operational management;

- the rights arising from pledge;

- the right to temporary use, lease or the sublease for a period of three years and more;

- servitudes, except specified in article 6 of the Law on registration;

- restrictions of the rights on designing, construction and use of separate unit of real estate, except restrictions which extend to real estate according to regulatory legal acts of the Kyrgyz Republic;

- the rights following from the judgments;

- the environmental management rights which list is established by the legislation of the Kyrgyz Republic (in dalneyshemzakonodatelstvo);

- the right termless (without specifying of term) uses of the parcel of land;

- other rights which are subject to registration now or in the future according to the Civil code and other legal acts of the Kyrgyz Republic.

2.1. General provisions of carrying out attendance registration

From the moment of official opening of local registration body of attendance registration all rights and encumbrances (restriction) of the rights per unit of real estate provided by present Practice guidance are subject.

Registration of the rights to real estate in attendance procedure is performed based on the statement, except as specified, provided by present Practice guidance.

In case of impossibility of appearance of physical person or legal entity whose it is right or restriction of the rights shall be registered in local registration body, for filing of application on state registration notarially certified power of attorney on registration of the right is provided.

Registration of the rights per unit of real estate of the physical persons and legal entities which arose earlier and are not registered in bodies of BTI is made according to present Practice guidance based on the statement on paid basis.

Initial state registration of the rights per unit of real estate is performed within 7 (seven) working days from the date of filing of application in local registration body for the location of unit of real estate. State registration of the rights to real estate, the right to which was registered in local registration body earlier, is performed within 3 (three) working days.

Registration of encumbrances (restrictions) of the rights is made on condition of obligation of the state registration of the property right which is carried out according to the Law on registration.

For registration of the rights and encumbrances (restrictions) of the rights per unit of real estate the following documents are provided:

- the statement of the established form (Appendix No. 1);

- for physical person - the document confirming the personality. For the plenipotentiary of physical person - the identity document, and also the document confirming powers of the representative of physical person on implementation of state registration;

- documents of title per unit of real estate;

- for the legal entity - the document confirming the personality and powers of his representative, and also the original and the copy of the registration certificate of the legal entity and constituent documents of the legal entity (in the absence of registration in judicial authorities of the Kyrgyz Republic as the legal entity the original and the copy of the local authority regulation or statistical card of registration as the legal entity is provided);

- the document containing technical characteristics of unit of real estate for introduction of data on change of the owner.

If his head acts as the representative of the legal entity, the statement from the charter, the protocol on its election or the order on its appointment is provided.

Petition have the right to file to state registration:

1. owner;

2. the lessor who is not the owner;

3. lessee;

4. pawnbroker;

5. trustee;

6. the special administrator in cases of the beginning of process of bankruptcy;

7. guardian;

8. custodian;

9. the person which is not the owner, but having the power of attorney on implementation of state registration;

10. other persons according to the legislation.

Exception is the requirement established by present Practice guidance, about need of the address for state registration of the rights (restrictions) of specially specified person (representing the party of the transaction, or authorized body).

In local registration authorities where the automated system of registration (ASR) is implemented, the procedure of attendance registration is made according to the user's guide ASR.

2.1.1. Requirements to the documents provided for state registration of the right

All documents provided on registration shall be processed in the procedure established by the legislation:

- with the filled details: the name of the body, organization or organization which issued the document; date; document number; seal or angular stamp;

- surnames, names, middle names and the residential address written without reducings;

- the name of legal entities, written without reducing, with indication of post and legal addresses;

- seals of legal entities with indication of identification taxpayer number;

Corrections in documents shall be certified by the body which issued it.

If the documents of title provided on registration are stated on two and more sheets, they shall be strung together and numbered by persons who filed petition on state registration and are certified by seal of the body which issued the document or, in the cases established by the law are certified by the notary. The copies of court resolutions provided on registration make sure only court.

All documents are submitted to registration body in duplicate, one of which shall be the original. The original of the document after registration of the right returns to the applicant, and the copy is introduced in registration case.

2.1.2. Reception of an application and documents for state registration of the right

Reception of an application and documents for state registration is made in local registration authorities on the established visiting days and hours in specially equipped rooms.

The specialist in receiving and delivery of documents checks:

- whether there corresponds person submitting the application, to the document proving his identity;

- legality of powers of the representative on filing of application;

- compliance of the submitted documents to the established requirements.

If the submitted documents conform to the established requirements, the specialist in receiving and delivery of documents:

- writes out the document for payment for work on state registration;

- after submission of the document on payment registers the statement in the Magazine of reception of applications on registration of the rights, restrictions and issue of documents after registration (Appendix No. 3);

- checks correctness of filling of the statement and dates, acceptance time, sequence number of the statement and document number about payment;

- issues to applicants the receipt on reception of an application and documents, according to the established form and writes down contact telephone number (in the presence) (Appendix No. 5);

- transfers the statement with the enclosed documents to the head of department of registration, and Bishkek and Osh the statement is transferred in local registration authorities to the head of department of receiving and delivery of documents. The head of department of receiving and delivery of documents transfers the statement with the enclosed documents to the head of department of registration.

The powers of attorney issued on the implementation of registration and (or) transactions provided in local registration authorities are registered in the Magazine of reception of applications on registration of the rights, restrictions and issue of documents after registration (Appendix No. 3).

If real estate is in property of several persons, the documents of title confirming the fact of finding of property in common property are put to the statement.

In case of receipt of incomplete document package the specialist in receiving and delivery of documents performs documents acceptance with the notification of the applicant on need of provision of missing documents for the Receipt (Appendix No. 5) with indication of about it in the Registration application of the right.

The basis for refusal in documents acceptance is:

- address of inadequate person;

- lack of the document on payment for work on state registration or its wrong registration;

- absence at person who submitted the application, the document proving his identity;

- absence or the document processed in inadequate type certifying powers of the representative;

- lack of the title document per unit of real estate;

- discrepancy of the documents provided to registration to the requirements stated in Item 2.1.1 of present Practice guidance.

In case of refusal in documents acceptance, provided to registration, the application is returned to the applicant with indication of cause of failure on the form of the established form (Appendix No. 2).

The specialist in receiving and delivery of documents registers refusal in the Magazine of reception of applications on registration of the rights, encumbrances (restrictions) of the rights and issue of documents after registration (further - the Magazine of reception of applications on registration of the rights) and transfers copies of refusals to the registrar for the room to registration case. In the absence of registration case - in the special folder of refusals. Bishkek and Osh the specialist in receiving and delivery of documents transfers copies of refusals in local registration authorities to the head of department of receiving and delivery of documents who transfers copies of refusals to the registrar.

In case of refusal in documents acceptance, the applicant has the right to address management of local registration body for appeal of actions of the specialist in receiving and delivery of documents, and also in administrative or legal process.

2.1.3. Procedure for consideration of documents and decision making about registration of the right

The priority of consideration of the applications on registration of the right is determined date and time of its giving according to which the head of department of registration sends documents to the registrar for decision making about state registration. At the same time the head of department of registration performs also functions of the registrar.

In case of lack of identification code, the registrar sends documents to the cartographer of local registration body.

The cartographer applies borders of unit of real estate on the registration indexed card, assigns identification code, makes logging of assignment of identification codes (Appendix No. 28) and fills the first line of Section 1 of registration card then returns to the registrar.

The registrar checks the documents provided on state registration for compliance to requirements of the Law on registration and to other regulatory legal acts of the Kyrgyz Republic. At the same time the registrar requests availability of archive documents in archive of local registration office. In case of lack of archive documents per unit of real estate, the registrar does mark in the statement for lack of archiving.

In cases of identification of contradictions in the documents provided for registration and in need of provision additional, the registrar notifies the applicant on the form of the established form (Appendix No. 29) signed by the head of department about need of provision of the missing documents or documents confirming elimination of contradictions within 30 days from the date of the notification of the applicant.

If the applicant within 30 days from the date of the notification does not provide necessary documents, then advance registration or refusal is made. At the same time about registration the registrar who received the appropriate certificate issued by the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic has decision-making power.

If the registrar makes the decision on state registration of the right, then the registrar fills registration card, puts registration date and signs it.

After decision making about registration of the right and encumbrance (restriction) of the right, the registrar makes logging of registration of the property right (Appendix No. 10) or in the Magazine of registration of encumbrances (restrictions) of the rights (Appendix No. 11) and on the last page of originals of documents of title (and also on copies of documents of title which after registration go to archive) the certifying text about the registered right is made (Appendix No. 21). Information on unit of real estate and the registered right is introduced in the electronic version of the Unified State Register of Rights before receipt in archive of management.

Copies of all documents submitted for registration, technical documentation and all issued and acquired information on unit of real estate are located in registration case. The registration card is located in the special folder (file) and is stored in department of registration.

The registration case of unit of real estate is submitted to archive of local registration body, and originals of documents of title - to department of receiving and delivery of documents.

The specialist in receiving and delivery of documents issues the documents provided to registration to the applicant on presentation of the receipt and makes logging of reception of applications on registration of the rights (Appendix No. 3). In case of loss of the receipt documents are issued personally to the applicant on presentation of the document proving his identity.

In local registration body Bishkek accounting of the accepted documents is made in the Magazine of reception of applications on registration of the rights, and issue of documents is performed on presentation by the applicant of the receipt on documents acceptance on registration about what entry in other magazine is made. In suchaa of loss of the receipt documents are issued personally to the applicant on presentation of the document proving his identity.

2.2. Suspension of registration of the right

Article 22 of the Law on registration provides possibility of suspension of registration of the right in case of disputable situation. The person disputing the right to real estate and wishing to suspend its registration submits the application of the established form (Appendix No. 12) in local registration body. The specialist in receiving and delivery of documents registers the statement on suspension of registration of the right to real estate in the Magazine of reception of applications on registration of the rights and at the same time informs the applicant of submission due dates in court of the action for declaration. The specialist in receiving and delivery of documents directs the application on suspension of registration of the right to real estate to the head of department of registration. In local registration authorities Bishkek and Osh the specialist in receiving and delivery of documents registers the statement and transfers him to the head of department of receiving and delivery of documents who directs the application to the head of department of registration. At the same time, the local registration body notifies person who submitted the registration application of the right to real estate about filing of application by person disputing this right about suspension of registration of alleged right (Appendix No. 13).

In case of repeated receipt of the statement for suspension of registration of the right of the owner concerning the same unit of real estate, the specialist in receiving and delivery of documents shall request:

- statement for registration suspension

- the document confirming the fact of appeal to the court about suspension of registration of the disputed right

Suspension of registration of the right of the actual owner for the term of more than 10 days is made based on determination of court about suspension of registration of the disputed right.

In case of lack of determination of court about suspension of registration of the right per unit of real estate after 10 days, the alleged right is subject to registration.

2.3. Refusal in registration of the right

According to article 22 of the Law on registration the refusal in registration of the right to real estate can be made on the following bases:

1) if the submitted documents do not conform to requirements, the established Law on registration and other regulatory legal acts of the Kyrgyz Republic;

2) if the incapacitated citizen filed petition for registration of the right;

3) if the organization or person which issued the submitted document or the one whom this document concerns are not authorized to dispose of the rights which registration they try to obtain in relation to this unit of real estate;

4) if person who has the rights encumbered (limited) by certain conditions constituted the document without specifying of these conditions;

If the submitted documents on unit of real estate witness 5) about absence at the applicant of the rights to this real estate object;

6) if the right, encumbrance (restriction) of the right to real estate object about which state registration of the right the applicant asks is not the right which is subject to registration.

In case of refusal in registration the registrar fills in the conclusion about refusal in registration (Appendix No. 8) and transfers to the head of department of registration for acceptance of the final decision then the local registration body sends the notification on refusal to registration to the applicant (Appendix No. 9). In case of disagreement of the head of department of registration with refusal, the decision-making power about registration remains behind it. The conclusion about refusal in registration is located in registration case.

In case of refusal in registration, for the purposes of accounting of unit of real estate, the identification code is without fail assigned and the registration card is got.

The refusal in state registration of the right to real estate or transactions with it, or evasion of registration body from registration can be appealed in the State agency on registration of the rights to real estate under the Government of the Kyrgyz Republic (further - Gosregistr) according to the legislation or in court.

All notifications, except the notification on refusal in reception of an application, go through general department.

2.4. Error correction, allowed in case of state registration of the right

The mistakes made in case of registration of the right, which are not changing accessory, nature or content of the registered right can be corrected by registration body independently with the notification of all concerned parties.

Error correction, changing accessory, nature or content of the registered right, is allowed only with the consent of concerned parties.

If the interested person found the mistakes made in case of registration of the right, then it submits the written application addressed to the head of department of registration about error correction with indication of nature of mistakes to which the relevant documents containing the bases for introduction of corrections are put. At the same time, the interested person shall specify persons whose rights can be affected as a result of introduction of the corresponding corrections.

The head of department of registration charges to the registrar to check documents regarding compliance to the legislation and if documents conform to requirements of the legislation, the registrar makes corresponding changes to the main documents of single system of state registration of the rights (further - registration documents). At the same time all documents shall be placed in registration case.

If errors were found by the registrar:

- the registrar submits to the head of department of registration the application for permission of correction of the mistake (in a free form) allowed in case of registration of the right or encumbrance (restriction) of the right with indication of the reasons and the description of content of the forthcoming correction;

- in cases if the mistake can change nature or content of the registered right, the registrar sends the notification in writing to all interested persons;

- the registrar with the permission of the head of department of registration and the consent of concerned parties, makes correction to registration documents. At the same time the statement on permission of correction of mistake, the copy of the notification and the written consent of concerned parties are filed in registration case.

If the interested person did not specify the list of other interested persons whose rights can be affected, and the local registration body did not know and could not know about availability of these interested persons, then the local registration body does not bear responsibility for the mistakes made in case of registration of the right, allowed as a result of their correction.

2.5. Error correction, connected with mistakes in the documents issued or certified by authorized bodies

If registration of the right is made based on the document containing mistakes and certified (signed and certified by seal) authorized body, error correction is allowed only on condition of entering of the corresponding corrections by this body into the specified document.

For error correction:

- the local registration body directs the notification on need of introduction of corrections and the copy of the document to which correction shall be made, in the authorized body which issued or certified the document and also informs concerned parties;

- after receipt of the corrected document from authorized body, the head of department of registration sends it to registrar which makes the corresponding corrections in registration documents.

Error correction, changing accessory, nature or content of the registered right, is allowed only with the consent of concerned parties.

2.6. Registration of the rights arising, passing and stopping based on the actions of person performed according to the power of attorney

If the owner or the other person cannot independently register the right to real estate, then he can issue to other person notarially certified power of attorney on implementation of registration of the rights. In this case the local registration body can perform registration of the rights by proxy and person acting by proxy shall provide all documents necessary for registration of this or that type of the right, restriction (encumbrances) of the right according to this Chapter.

According to the civil legislation the owner has the right to issue the written authorization to other person for representation of the interests before the third parties.

In case of registration of the right or encumbrance (restriction) of the right to real estate which arise in connection with actions of person acting by proxy the specialist in receiving and delivery of documents shall check effective period of the power of attorney. Effective period of the power of attorney cannot exceed three years. If term in the power of attorney is not specified, then it is valid within one year from the date of issue. The power of attorney in which date of its making is not specified is considered invalid.

The power of attorney issued by the legal entity shall be signed by his head or the other person authorized by constituent documents with sealing of this organization. The registrar shall check constituent documents in case of registration of the right which arises, passes and stops in connection with issue of the power of attorney.

If the power of attorney on making of all actions on behalf of person which issued its (general power of attorney) is issued, then person acting by proxy does not need the separate power of attorney for confirmation of competences for filing of application to registration of the right.

The power of attorney on transactions with real estate, requiring notarial form, shall be notarially certified.

The power of attorney issued according to the procedure of retrust shall be notarially certified, except as specified, when the power of attorney is issued signed by the head of the legal entity (or the authorized person). Effective period of the power of attorney issued according to the procedure of retrust cannot exceed effective period of the power of attorney based on which it is issued.

With cancellation of the main power of attorney the retrust stops the action.

In cases of filing of application on state registration of the rights and encumbrances of the rights to real estate based on the power of attorney issued (certified) competent authorities of foreign countries according to the Convention "About Legal Assistance and Legal Relations on Civil, Family and Criminal Cases" signed in Minsk on January 22, 1993 and which became effective on May 19, 1994 power of attorney of the following states do not require legalization:

Republic of Belarus;

Republic of Kazakhstan;

Republic of Moldova;

Russian Federation;

Republic of Tajikistan;

Turkmenistan;

Ukraine;

Georgia;

Armenia;

Azerbaijan;

Republic of Uzbekistan.

Powers of attorney of other states are subject to obligatory legalization according to the legislation of the Kyrgyz Republic.

2.7. Modification of registration documents in case of change of surname, name, the middle name/name of the owner

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