Synthesis of the judicial practice in civil proceedings against decisions and actions (or
inaction) of the registration authority for state registration of rights, as well as software
disputes arising from real estate transactions require state registration rights
The aim was to study the generalization of judicial practice civil proceedings on
complaints, petitions against decisions, actions (inaction) of the Department of Justice
regions (hereinafter - the registering authority), as well as disputes arising from real estate
transactions that require state registration of rights to identify important issues of law
enforcement.
Statistics with a special release of the registering authority, as the defendant, or body
whose actions are appealed in cases related to state registration of rights to immovable
property and transactions with it are not available. Stated excludes the possibility to establish
the actual number of cases handled by the specified category, as well as cases in which the
registration authorities participated as third parties. Disputes heard by courts of general
jurisdiction and specialized inter-district economic courts (hereinafter - SIEC), depending on
the subject of appeal in accordance with their jurisdiction set out in Chapter 3 of the Civil
Procedure Code of the Republic of Kazakhstan (hereinafter - the Code of Civil Procedure).
In cases courts apply the following regulations: The Constitution of the Republic of
Kazakhstan, the Civil Code, and Code of Civil Procedure, Law of the Republic of
Kazakhstan dated July 26, 2007 "On state registration of rights to immovable property," Law
of the Republic of Kazakhstan dated December 23, 1995 "On mortgage of immovable
property. Along with them, the courts were used: normative decisions of the Supreme Court
of the Republic of Kazakhstan, the Land Code of the Republic of Kazakhstan, the Republic
of Kazakhstan Law "On Limited and Additional Liability" and other normative legal acts,
depending on the subject matter.
In accordance with Article 118 of the Civil Code of the emergence, change and
termination of rights (encumbrances) on real estate subject to state registration in the cases
provided for in this Code and the Law of the Republic of Kazakhstan "On state registration
of rights to real estate." Other objects of state registration are related to real estate,
determined by the Law of the Republic of Kazakhstan "On state registration of rights to real
estate".
Government of the Republic of Kazakhstan dated January 29, 2007 M1-b4 function
for registration of rights to immovable property transferred to the territorial bodies of
Justice. In accordance with the Standards for public services, approved by the Government
of the Republic of Kazakhstan dated December 15, 2009 № 2121, public service "State
registration of rights (encumbrances) pa real estate" is the territorial bodies of Justice,
through public service centers (PSC).
Of the cases seen that natural and legal persons are turning to the registration
authorities to fulfill the requirements of Article 118 of the Civil Code, a statement on the
state registration of rights mainly to meet the six-month period since the onset of the legal
fact, which is the basis for the emergence of rights (encumbrances), including notarization of
the contract, the entry into force of the court, issue of other legal documents specified in
Article 9 of the Act. However, not all body carrying out state registration of real estate rights
and transactions comply with the rules regulated by Article 118 of the Civil Code and the
Law. The foregoing is one of the reasons for disputes between the parties to these
relationships.
Of the number of cases investigated by the greatest number of examined applications
of physical and legal persons of the appeal against the refusal of the registration authority in
the state registration of rights to immovable property and transactions with it. Courts
considered and statements about the illegality: suspension of state registration of rights,
registration rights, the release of property from encumbrances, and others. Demands the
abolition of state registration of rights to immovable property were presented mainly along
with claims arising from disputes about the invalidation of transactions, termination of
contracts, recognition of documents invalid and partly other disputes.
Judicial practice in this category of cases studied relatively stable. Of the 109 cases
studied in 1731 (6.3%) of judicial decisions of courts of first instance changed in appeal and
cassation, 78 (4,596) judicial acts repealed appeal. The basis for the change and cancellation
of judicial acts were: violation or incorrect application of substantive and procedural law)
wrong definition and clarification of the circumstances relevant to the case; discrepancy
findings of the trial court stated in the decision, the circumstances of the case.
I. Denial of registration of rights to immovable property
Grounds for refusal of registration of real estate rights set out in Article 31 of the
Law, which the registration authorities mainly observed in the assessment of the grounds for
registration rights. In some cases, decisions and actions, inaction by the courts to be
unfounded on the grounds of their non-compliance with the Law, a broad interpretation of its
provisions, requesting documents that are not subject of a claim, denial of registration of a
court decision, etc.
1. Refusal of state registration of rights to land under a contract of donation recognized
justified because the registration presented documents showing the location of different
addresses land.
Sh. and A. appealed to the court to invalidate the refusal GA "Department of Justice
of the East Kazakhstan region" registration rights to the land as a gift, indicating that they
are presented for registration of all documents.
Decision of the district court to satisfy the request A. and Sh. reasonably refused,
citing Article 21 of the Law, according to which for state registration, the applicant must
submit in addition to the title deeds and other documents confirming registration with
application to data sheet of the real estate and the identification document of the land. In the
title documents submitted by the applicant and the donation contract is different addresses
land. Controversy about the actual location of the land plot is not eliminated.
2. Refusal of state registration of immovable right property considered justified, as
presented in the registration documents, in form and content do not meet legal
requirements.
In connection with the identified deficiencies in the contract - the sale of the right of
lifetime inheritable possession of the land plot in the horticultural association "Apple Tree":
the absence of the date of its conclusion, which does not allow to determine the date of the
testator's property rights necessary for the conduct of legal cadastre GA "Department of
Justice in Pavlodar "denied registration survivorship I.
Of the City Court VI requirements to invalidate the refusal to be unfounded, as
presented in the registration documents, in form and content do not meet legal requirements.
The court's findings are consistent with the provisions of Article 31 of the Law establishing
such grounds for refusal of registration of rights to immovable property. Court stated that if
there are legal grounds for the arguments set out in the statement may be the basis for
establishing the legal fact - the date of contract.
3 Refusal of state registration of property rights on the basis of the contract - the sale
of land in connection with the fact that the contract is not stitched and numbered,
declared illegal. It Demands for assigning responsibilities to the registering authority to
carry out certain actions the court refused.
X. appealed to the court to invalidate the refusal SI "Department of Justice of
Astana" in the registration of property rights on the basis of the contract - the sale of the land
area of 0.00192 hectares and forcing register the contract. Statement based on the fact that
registration on the right of Land, unreasonably withheld only in connection with a gem that
the contract is not stitched and numbered than compromised the integrity of the document.
The decision of the district court was granted in part the statement. Actions GA "Department
of Justice Astana" to deny state registration of rights to immovable property, with the laying
obligation to eliminate fully the violations of the rights of the applicant was declared illegal.
Decision is motivated by the fact that the right to a garage in the cooperative "E" on
the Land occurred in X. on basis of the certificate of inheritance by law. 11E contract - the
sale concluded with the Committee for Land Management Lstaiy (hereinafter - Committee),
X. acquired private ownership on land under a garage. B contract - sales submitted by the
applicant for registration, there are signatures of the parties, the press organ of the state, and
the receipt of payment the value of land. The authenticity of the contract according to the
law no one challenged the state body with which the contract is currently reorganized.
This conclusion of the court is noteworthy because the documents conform to the
provisions of Article 21 of the Act, which establishes the list of documents to be submitted
for registration.
Requirements that the documents submitted by them in the execution on multiple
sheets must be numbered or strung together in this article are not specified.
As part of the application for compulsion to register the contract - the sale is denied. Failure
properly motivated with reference to paragraph 28 of the regulatory decisions of the
Supreme Court of the № 20 on December 24, 2010 "On some issues of courts provisions of
chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan", in virtue of
paragraph 28 normative decree recognizing the decision of the authority, local selfgovernment illegal, the court may not indicate a judicial act of the content of the decision,
which state authority, the local authority must take into arisen publicly - legally.
4. Failure of the registration authority to register ownership of the apartment pursuant
to a court, which had no guidance on the technical characteristics of the object
necessary for the purposes of conducting a legal inventory declared illegal.
P appealed to the court to invalidate the refusal GA"Department of Justice Astana"
(the GA) in the state registration of ownership based on the decision of the district court,
which exchange transaction recognized held apartments and entrusting responsibilities to the
registering authority to perform actions for state registration of rights on the land.
Decision of the district court granted in part the statement. Disclaimer GA to R.
registration of ownership of an apartment declared illegal. At GA committed, fully eliminate
the violations temper P. satisfies the request in the State of the responsibility to perform
actions on the state registration of ownership of the apartment denied. Decision is motivated
by the fact that R. for state registration provided documents, in form and content appropriate
to the list referred to in paragraph 2 of Article 21 of the Law. R. presented and specified in
the list of technical passport of an apartment with the conclusion RGKG1 "Real Estate
Center in Astana" on the specifications of the object needed for the purposes of conducting a
legal inventory.
Thus, the refusal of the registration authority registration rights pursuant to a court
due to lack of data it flat on the specifications Court declared insolvent. R. handling an
application for state registration of rights is consistent with paragraph 1 of Article 9 of the
Act. By virtue of this provision the right person must apply for state registration not later
than six months after the occurrence of a legal fact, which is the basis for the emergence of
rights (encumbrances), including notarization of the contract, the entry into force of the
court. The above decision, the court recognized held swap deal is that condo, assigned to the
requested register R.
5. Refusal of registration of property rights on the basis of a court decision on the
establishment of a legal fact of possession, use and disposal declared illegal.
N, as successor V., who died Oct. 2, 2009, addressed to the Department of Justice of
Almaty on registration of property rights on the basis of the certificate of inheritance and the
judgment of September 22, 2011 which establishes the legal fact of possession, use and
disposal of dead V. flat on ownership.
Registering Authority refusal to registration of the motivation that the registration is
subject to legal cadastre ownership of property, but submitted for registration the judgment
does not specify the ownership and set only a legal fact.
A right to appeal was refused to register 11. Court.
Judgment of the Court I. satisfied registration authority Almaty obliged to register
the ownership of the apartment for V., who died Oct. 2, 2009. Court correctly reasoned that
paragraph 1 of Article 9 of the Act establishing the grounds for the person with the
application for the state registration of the presence of a court decision does not provide
guidance on the types of court decisions on the basis of which rights are not subject to
registration.
However, it should be noted that by virtue of Article 282 of the Code of Civil
Procedure the court, admitting to be justified, shall decide on the obligation of the relevant
public authority to eliminate fully the violation of rights, freedoms and lawful interests of
citizens and legal entities. In this connection, in the operative part of the decision of the
court there was no need to specify what actions must perform the registration authority.
6. Refusal of registration rights pursuant to a court, but the grounds:
its lack of guidance on the recognition of the right of ownership over a person applying
for registration of rights, expiration land vendor found not to comply with the Act.
Decision of the district court of Almaty on December 21, 2011 is recognized as the
purchase took place - a garage sale № -10, an area of 19.40 square meters, and paid land use
rights on the land plot of 0.0049 hectares between F. and H. Department of Justice Almaty
G. denied state registration of rights to immovable property in connection with the
expiration of land from the seller, F., and in the absence of court decisions guidelines for
recognition of ownership for G. that appealed to a court.
Satisfying the requirements in the recognition of G. illegal refusal of registration law,
the court stated the following. Judgment of 21 December 2011 recognized held disposals
garage, located on a plot of the term land use which is really expired. In accordance with
Article 52 of the Land Code of the ownership of the building (structure) entails in the
manner prescribed by law ownership of the land. These rights are inseparable from each
other, with the transfer of ownership or the right of economic management or operational
management rights on the building (structure) and other immovable property passes to the
purchaser the right to temporary or permanent long-term land use for the whole plot or a
specific part highlighted the alienation of buildings (structures). In this connection, the Court
declared insolvent grounds for refusal of registration of rights - the expiry of land use.
Other grounds for refusal of registration of rights is - the lack of guidance in the
court decision on the recognition of ownership rights to real estate G. declared insolvent by
reference to paragraph 3 of Article 7 of the Civil Code. By virtue of the rule of law and civil
rights obligations arise from the judgment established civil rights and obligations.
The court denied the claim in the provision of temporary paid land use rights with
reference to Article 32 of the Land Code of the Republic of Kazakhstan. According to the
article, providing land disposition citizens and legal entities made the decision pas local
executive body. The competence of the defendant Almaty Department of Justice does not
include a decision to grant the land use rights.
Meanwhile, particularly state registration of rights to immovable property located on
a plot of unregistered, are regulated in Article 38 of the Act, which the court has not applied.
By virtue of the law said the state registration of rights to immovable property situated na
plot, the right is not registered, is not allowed without registration rights to the land, if the
right to a plot emerged after the introduction of state registration of rights to immovable
property and not recognized arisen without state registration. The state registration of rights
to land and these properties can be carried out simultaneously. Taking into account the
provisions of the said rule of law the court should determine the range of circumstances to
be established for the proper resolution of the case.
The judgment refers to paragraph 12 of normative decree of the Supreme Court of
the Republic of Kazakhstan № 3 dated 20 April 2006 "On the practice courts to consider
disputes about the right to housing, the owner left," according to which "the court's decision
upholds the is the basis for the registration of ownership this house. "But the present case,
however, such a reference is not without reservations quite correct, because in this paragraph
regulates the issues of registration of property rights on the basis of a court decision by
prescription.
7. Failure registering authority registering court decision on registration of the
transaction to be unfounded.
According to the contract - the sale of August 7, 2006 S. M. sold the apartment,
which has not registered its right. As a result of ownership of the apartment remained
registered for the seller Sh. The lawsuit decided by the District Court of 7 July 2009 on the
registration of the transaction concluded August 7, 2006 between W. and M. on the purchase
- sale of apartments. Decision is motivated by the fact that the buyer must pay M. D. money
and fearing foreclosure sale, evades the state registration of the apartment. The court's
findings are based provisions of paragraph 2 of Article 155 of the Civil Code, according to
which, if one of the parties refuses to state registration of the transaction, the court may at
the request of the other hand to make a decision on registration of the transaction, in which
case the registered in accordance with the court's decision.
However, the registration authority is not made on the basis of re-registration of the
judgment. Sh. appealed to the Court of Justice of the inaction of the Department of Almaty
by the court decision.
In proceedings before the court establishes that the registration apartment suspended
due to the fact that the registration package submitted no documents for real estate, technical
data sheet on the structure of the sample set. Notification of Almaty Department of Justice
informed the refusal of state registration of rights to immovable property, indicating a need
for clarification of the court's decision. Court correctly requirements found to be justified,
since the transaction was subject to registration in accordance with execution of the
judgment, which did not require an explanation.
8. Refusal to register a disposition of real estate but the grounds that registered
encumbrance in the form of collateral the bank found to be unlawful, in view of the
Bank's consent to such registration preserving rights as mortgagee.
Court decision made flat section, which is common property of spouses S. He
received from a former spouse O. amount awarded by a court for 1A share in privatized
apartment, as they issued a notarized receipt. The apartment has been the subject of
collateral on credit obligations before JSC “BTA Bank", which consented to the registration
of ownership for O. subject to the rights of the Bank as mortgagee.
In the registration of rights on the street O. share apartments Justice Department of
Karaganda city refused, citing the registration burden in the form of a pledge of the Bank,
this excludes state registration of an object state registration.
O. appealed to the court to invalidate the refusal of state registration of property
rights, which the court reasonably satisfied. Court reasoned decision on the fact that by
virtue of Article 21 of the state registration of rights to real property are made on the basis of
statements by the authors, the parties (participants) of the transaction, a public authority or
other authorized persons submitted to the registration authority. In the present case there is a
written consent of the mortgage Bank of registration in the name of O. apartments without
removing the encumbrance of the collateral with which it agrees. In addition, the registration
authority granted notarized statement S. spouse about getting away from the wife of the
award O. completely. Grounds for refusal of registration of property rights by the court were
not available.
9. Refusal of registration rights arising pursuant to a court but the grounds that the
property is registered burden in the form of collateral the Bank declared illegal
because by virtue of Article 323 of the Civil Code, in the case of transfer of the
mortgaged property, the right of pledge remains valid.
Decision of the City Court of December 20, 2010 in the general section produced a
joint property of the spouses Sh. with the definition of each share. Pursuant to the decision
of the court October 4, 2011 Sh. filed in PG "Justice Department of Shahtinsk" on the state
registration of ownership of the mall "CHIC" Vi and part of the area under him. Registration
rights suspended for the mortgagee's consent – JSC "Halyk Bank of Kazakhstan" on the
implementation of state registration November 11, 2011 denied registration rights to the
property at the end of the period of suspension.
Sh. appealed to the court to invalidate the suspension of GA "Department of Justice
of Shakhtinsk" registration of title to real property and assigning responsibilities to register.
Judgment of the Court Sh. fully satisfied, the suspension of the registration of the property,
as well as the denial of registration deemed illegal. The court ordered the law to register.
Satisfying the requirements of the applicant, the Court of First Instance rightly
pointed out that the existence of encumbrances in the form of collateral is not an obstacle to
registration of ownership of S. By virtue of Article 323 of the Civil Code, in the case of
transfer of the mortgaged property, the right of pledge remains valid. Registration of
immovable property must be made pursuant to an enforceable court decision, which is
binding for the registering authority under Article 21 of CPC. In this case there is no
disposition of the property, and to determine the proportion of the spouse. In resolving a
dispute between spouses city court case attracted the Bank, which is reflected in the decision
from December 20, 2010. In a reply dated November 23, 2011 the Bank did not object to the
registration of the mortgaged property Sh.
10. Failure registering authority registering temper declared illegal, the submission of
the applicant a certificate of right registration of ownership of the testator, the court's
decision on the division of a residential building between spouses and awarding
ownership N. act right of lifetime inheritable tenure, technical passport of the house.
A. filed a statement recognizing the failure of the registration authority to register
ownership illegal. Statement is motivated by the fact that after the death of N. June 1, 2011
left a legacy: the land and house. Copyright died on the basis of the District People's Court
on April 19, 1963, an act for the right of lifetime inheritable tenure. Testator rights to real
property in the established order are not registered. Certificate has been issued by the notary
of inheritance by law for the registration of a dwelling house with land for dead H. However,
the right to refuse registration under paragraphs 1-1, 1-3 Article 31 of the Act in connection
with the submission of documents for registration, in form and content do not comply with
the legislation.
Judgment from June 5, 2012 denial of registration as illegal and entrusted to the
Department of Justice Hromtau makes registration of rights to immovable property.
Satisfying the requirements of the applicant, the court proceeded from paragraph 23
of the regulatory decisions of the Supreme Court №5 on June 29, 2009 "On some issues of
courts of law of inheritance." By virtue of the said paragraph 23 in the absence of
registration of title to immovable property pas the time of opening of the inheritance of the
testator notary may issue a certificate of title to the heir to the registration of ownership of
the testator, if sent or identification documents of title to the property in the name of the
testator. The applicant submitted to the registration authority: certificate of registration of
property rights of the testator, the court's decision on the division of a residential building
between spouses and awarding ownership N., act on the right of lifetime inheritable tenure,
technical passport of the house.
Submitted by the applicant for registration of the land act of the old model, replacing
it with a new act is not performed. In the old act is not specified cadastral number, location
of land in the land registry is not made. These circumstances not reasonably Court
recognized grounds for refusal of registration rights. By virtue of paragraph 11) of Article 43
of the Land Code (as amended on July 20, 2011) and identification documents of title to
land, issued to citizens and legal entities prior to the enactment of the Code, remain valid for
the changes in land rights established land legislation of the Republic of Kazakhstan.
Substitution of these documents on the documents proving ownership or land use on land, in
accordance with the Code is optional holders. Until July 20, 2011 similar requirements were
enshrined in Article 170 of the Land Code.
11. Oral refusal of the registration authority for registration of real estate of the
testator was illegal.
B. appealed verbal refusal of the Justice Department of the Kordai district
registration disposition of immovable property. In support of the requirements specified by
the decision Sarybulak rural district her husband M. issued public act pas right of private
ownership of land. In the future, the act of acceptance commission from June 10, 2009 put
into operation a house built spouses on this plot. However, these documents are not
registered in the Department of Justice, as M.
He died on September 17, 2009. When you call the registering authority it orally
denied registration due to the fact that the documents submitted by the holder are her dead
husband.
Kordai district court decision statement is satisfied, the action of the registering
authority deemed illegal. On the registration authority has the responsibility for registering
the State act on the right of private ownership of the land and the act of acceptance
committee on June 10, 2009, acceptance into service of an apartment house with farm
building, built spouses, that is, the rights of the deceased M. on such real property.
The basis for the application is satisfied B. court recognized the acquisition and
construction of real property during the marriage the spouses. B., being heir to the first turn
right, in accordance with the requirements of paragraph 3 of Article 1039 of the Civil Code
and the Law "On Notary" exercise and protect personal non- property rights and
responsibilities belonging to the testator, the existence of which does not stop his death, on
the basis of the certificate of registration of the right to non-property rights of the testator.
12. Ownership of immovable property can be registered on the basis of a court decision
on the division of property, accompanied by evidence of receipt of compensation for
the owner of a share in the common property.
P. sued to B. requested to recognize ownership of the apartment for Hugh M.
deceased, the court found that the ownership of the disputed apartment registered spouses M.
and O. (Criminal) on parts. Judgment of December 5, 2000 the property is divided, the
apartment allocated M., and B. in favor of monetary compensation recoverable. The court
decision enforced. M. has not registered ownership of the rest of the apartment (Criminal).
After the death of M. notary gave his wife P. additional evidence of the right to register the
right to Vr of the apartment.
The Court applied Article 44-1 of the Law, according to which the basis for the
registration of ownership of the property acquired in the manner prescribed for the execution
of court decisions, are the sales contract signed by the buyer and the bailiff, the bailiff or the
decision and the act of acceptance - transmission property and granted the petition. Moscow
recognized the right of 1/2 part of the apartment. The decision is not challenged and came
into force, although the link to the article 4-1 Court Act is controversial.
In this case, a different procedure execution of the judgment of the division of
common property was established.
According to paragraph 5 of Article 218 of the Civil Code to obtain compensation
for the cost share in the common property owner loses the right to a share in the common
property. 11asledniku should refer to the registration authority for the location of the
property the Justice Department of the Taiynshinsk district of North Kazakhstan region with
the registration application on M. ownership of the rest of the apartment Vi. Should attach to
the application for registration of a court decision on the division of property and evidence
of receipt b. compensation (executive order terminating the proceedings for compensation in
connection with the complete execution, and if the court's decision was executed voluntarily,
cashier's check, money orders, etc.). And the question of the rights could not be resolved
without going to court.
13. Unsubstantiated refusal of registration tempered by judgment recognized
registration authority in court and signed a settlement agreement with the applicant.
By virtue of paragraph 9 of the regulatory decisions of the Supreme Court of the
Republic of Kazakhstan "On some issues of courts provisions of chapter 27 of the Civil
Procedure Code of the Republic of Kazakhstan", civil cases for applications submitted in the
order of chapter 27 of the CPC derived from public relations and considered in the order
special proceedings. Special proceedings are a kind of action proceedings having features,
including case cannot be completed by the settlement.
However, there are cases of court approval of the settlement agreement by categories
such disputes.
Judgment of September 2, 2010 ownership of the apartment was recognized for T. In
connection with her death on September 11, 2010, the right of the flat had not been
registered in the registering body. Heir received a certificate of inheritance, including the
right to registration decisions of the city court.
Denying registration of rights to immovable property, the Department of Justice of
the Ridder referred to the fact that the court decision does not include all the owners, for
who previously registered rights, there are contradictions on the date of entry into force of
the court decision.
Failure registering authority appealed heir to court stating that the state registrar shall
not refuse to state registration of the rights established by a final judgment. Investigating the
case, the defendant acknowledged the applicant's claims and voluntarily made the
registration of which has arisen on the basis of a court decision. Case dismissed in
connection with the approval of a settlement agreement.
II. Challenging the state registration of temper
1. Register disposition of property pursuant to a court legitimized as the registration
authority cannot check the court decision containing the output of real estate supplies a
particular person.
Decision of the City Court of June 18, 2008 defined half share in the authorized
capital K. LLP "K" in the amount of 0.0095% in the indoor cafe, service center, office space
and a plot. The same decision defined share in total debt J. spouses before LLP "K" in the
amount of 101 625 894 tenge. After the entry into force of the court, J. Company paid debt
spouses LLP "K", including the debt of the defendant in the amount of K. 101 674 202
tenge, the defendant himself any action for repayment of the debt is not taken. Since the
money spent on the purchase of marital property - room cafe, were borrowed, received from
LLP "K", J. considered unjustified registration of ownership (Criminal) share this property
for K. to her paying them the amount of 101 674 202 tenge .
J, filed a lawsuit to invalidate the actions of the Justice Department of UstKamenogorsk on registration of property rights for the defendant K. (Criminal) of the room
cafe.
The Court found the actions of the registering authority legitimate and dismissed the
applicant to satisfy the requirements for the recognition of the illegal actions of the
registering authority for the registration of property rights for the defendant K. (Criminal) of
the room cafe. Right decision based on the fact that the registration authority may not check
court decision containing the output of real estate supplies a particular person or on
proprietary liability law, which is the basis for registration rights.
2. Register condominium object recognized legitimate because the presumed violation
of the applicant.
LLP "TK" filed a lawsuit against the State, "Justice Department of the Ridder" to
invalidate the state registration of the condominium due to the fact that the land share of
LLP "TK" is 97.6% among apartment owners, condominium owners. When registering a
condominium violated his rights as a land owner, and a collection of apartment owners has
been authorized to decide on the registration.
Denying the claim, the court referred to the prejudicial judgment of September 17,
2008, in which the arguments of LLP "TK" the absence of a quorum at a meeting of tenants,
and the absence of un - notified at a general meeting legal assessment. The court explained
by the fact that the decision of akim of the Aepinogorska from March 29, 1999 TOO "TK"
owns land shares along with other owners, and not a separate land, which they were not
challenged. Registration authority according to the requirements of Article 21 of the Law
rightly made registration of the condominium.
The court's decision is reasonable, but the court had to determine the range of
circumstances to be established for the proper resolution of the dispute in accordance with
the requirements of Article 39 of the Law, which regulates the issues of state registration of
the condominium, and refer to it to justify the conclusions.
3. Skipping the deadline for the state registration shall not prevent the exercise by
citizens of entities of their property rights and obligations.
K. filed a lawsuit to LO "P" of Mayor's Office of Petropavlovsk and others,
challenging the decision of akimat to invalidate the agreement to lease the land. JSC «II»
filed a counterclaim to the Mayor's Office, K. and others to declare illegal and quash akimat
invalidate contracts - sale.
Found that decree Administration from February 20, 2006 granted Land JSC «II»,
which registered its right April 30, 2007. Land K. decree granted Administration From
March 3, 2006, has been registered September 27, 2006 and on the same day sold K. Land
Plots had overlay and therefore, appealed the ruling parties mutually akimat and
transactions.
K., registered the right to land formerly JSC "P" referred to Article 118 of the Civil
Code, according to which the right of ownership arises from the moment of state
registration, indicates that the rule of JSC "P" are not violated.
Decision of the court suit of JSC "G1" with reference to paragraph 3 of normative
decree № 4 of the Constitutional Council of the Republic of Kazakhstan dated April 23,
2008, according to which the state registration, as such, does not affect the content of the
right to immovable property and transactions with it. Skipping the deadline for state
registration should not prevent the implementation of citizens and legal persons of their
property rights and responsibilities, and should not limit the right of everyone to have
private property any legally acquired property, warranty property law. Lack of timely
registration of ownership of the property is not entitled to terminate the registration of the
subject him ownership of the immovable property acquired by it.
Also stated that the right to use land, including its part of the contested land in reality
owned JSC «II» earlier than the right part of this pa was given K.
Refusing to meet the requirements of K., the court stated that the disputed decision
made before granting akimat K. land. In this regard these acts and contracts of the agency
could not break and do not in any way violate the rights K., because at the time of their
issuance and K. she did not exist any - or land rights.
4. After signing the contract of sale of real estate to the buyer occurs registration
disposition to the property, but it is not implemented.
LLP "K" to sue individual entrepreneur E. to recognize the transaction invalid. The
requirement is motivated by the fact that in August 1998 JSC "C" to the plaintiff sold the
property complex, including the power line. The specification, which is an integral part of
the contract, as well as in the act of reception - transfer documentation from JSC "C" LLP
"K" on the list and the name assigned to a high-voltage line without specifying its length. As
a share of the liquidated enterprise JSC "C" this power line on the act of reception and
transmission from November 24, 2002 assigned to the individual entrepreneur E., which
registered the right to property on April 17, 2003.
Courts and appellate courts in a case applying paragraph 1 of Article 188, Article 249
of the Civil Code, according to which the ownership has recognized and protected by the
legislative acts of the subject right at its discretion to possess, use and dispose of property
belonging to him. Ownership stops at alienation by the owner of his property to others.
The courts have indicated that since the conclusion of the contract - the sale of June
08, 1998 and the signing of the act of acceptance - the transfer of property from LLP "K"
when the right to register for an ownership of said power line. Since that time, OJSC "C" is
not entitled to sell the same power line to another person without prior recognition of the
established procedure invalid for any reason, the contract - the sale of June 08, 1998.
Agreement is not disputed, and therefore has legal force in the transaction JSC "C" with the
individual entrepreneur E. the same transmission power lines violated the requirements of
paragraphs 3 and 4 of Article 188 of the Civil Code and Law LLP "K". In accordance with
paragraph 1 of Article 158 of the Civil Code of the challenged transaction is invalid.
Overturned the decision of the court and the appellate ruling supervisory authority
indicated that the individual entrepreneur E. carries the burden of maintenance from the date
of registration of ownership of the power line, pays taxes. LLP "K" the burden of paying
taxes is not exercising, until 2002 tax liability for disputed transmission line carried OJSC
"C".
5. Failure to satisfy the claim, the court reasoned that the transaction giving registered,
applied paragraph 6 of Article 7 of the Act.
O. to substantiate a claim to invalidate the registration of property disposition under
the contract that J. giving the apartment gave his daughter B. on March 16, 2011, register
their character indicated that he in February 2011 bought the apartment from J. - his mother.
Rights to the apartment are not registered for them, even though the money in the amount of
U.S. $ 000 S0 she transferred. Used as evidence submitted to the court a signed J. agreement
made in writing by O. O. referred to the fact that his right arose prior law B., lack of
registration does not deprive him of any rights in the transaction, it is the rightful owner,
whose interests are protected equally with the right property.
According to paragraph 6 of Article 7 of the Act, in establishing priorities among
several rights (encumbrances) on the same property must be assumed that registered in the
legal cadastre rights (encumbrance’s rights) on real estate, which, in accordance with
Articles 4 and 5 of the Act are subject to state registration, take precedence 'over
unregistered mores.
Denial of the claim, which agreed to the appeal panel of judges in civil and
administrative cases, the court reasoned that the transaction giving registered and applied
paragraph 6 of Article 7 of the Act. Thus, the court stated priority for the disposition of
unregistered rights.
The court of cassation judicial board judicial acts repealed. A settlement agreement
between the parties was approved.
6 The court's decision to transfer to communal ownership apartments timely registered
with the registering body, in this connection, the Court pointed to the priority of
registered rights.
Apartment in the city Yereimentau on July 26, 2007 set the registration of unclaimed
properties and subsequently the decision Ereimentau District Court from November 28,
2011 transferred to communal ownership. Decree akimat Ereimentau district № a-2/101
from February 8, 2012 Apartment adopted in communal ownership. However, the city
administration timely court decision is not registered and it remained unfulfilled.
From the registration materials of the case, the controversial sale before the court
decision, the owner of T. was alienated to the buyer E. under the contract - on sale from
November 12, 2011. Contract is registered in Justice Administration of the Ereimentau
district November 22, 2011, and on March 14, 2011 E. G. sold it, the transaction is
registered.
Administration of filed a claim for recognition of this contract null and void. The
representative of the Department of Justice of the Ereimentau district explained that after the
one year by akimat was not accepted any action. At the time of registration of a contract the sale of an apartment at any encumbrances T. pa apartment registered. The fact that the
apartment T. recognized ownerless unknown, since the court hearing the Justice Department
was not involved, the judgment of November 28, 2011 had not received, the obstacles to the
registration of transactions was not available.
Akimat arguments that the Justice Department did not have to record the transaction
of - for setting the apartment on record as ownerless property, the court has not taken into
account. Court decision in a lawsuit Mayor's Office denied. Validity of the conclusions of
the court is controversial.
7. Cancellation of entries in the registration form provided legal cadastre registration
authority acts on the basis of the court, entered into force.
Civil proceedings for recognition disposition D. defendant D. in the counterclaim,
including PG "Justice Department of the North-Kazakhstan region" and another asked to
annul the decision on legalization of property, contracts - cancel the sale and state
registration of rights to immovable property.
Judgment of February 23, 2012 counterclaim satisfied and the state registration was
canceled of rights to a land plot for D.
Meanwhile, for the cancellation of the recording on the basis of judgment rather
invalidation of the transaction, without additional registration body laying on such duties in
the absence of violations of his actions.
III. Registration is not certified by a notary contracts
According to paragraph 4 of Article 21 of the Act, if the transaction is not
authenticated by a notary, the registering authority shall verify the authenticity of the
signatures of the persons who committed the transaction (authorized their representatives),
their capacity (capacity), as well as their compliance with the will of the consent. Pursuant to
the Law of Justice has territorial authority in the presence of the registrar CHS for signature
authentication perpetrators transaction (authorized their representatives), their capacity
(capacity), as well as their compliance with the will of the consent.
Generalization showed that the registration authorities correctly denied registration
rights with the requirement to comply with these provisions of the Law. This is evidenced by
the following examples of judicial practice,
1. If the transaction is not authenticated by a notary, the registering authority have to
verify the authenticity of the signatures of the persons who committed the transaction
(authorized their representatives), their capacity (capacity), as well as their compliance
with the will of the consent.
Refusal of registration rights in connection with the failure of the requirements of the
registering authority of the need to check the authenticity of the signatures of the parties the
court found reasonable agreement, K. appealed to the court to invalidate the refusal GA
"Department of Justice on the Glubokovsky district" in the state registration of rights to
immovable property based contract - the sale of July 27, 2011.
The court found that the contract - the sale of July 27, 2011 by the seller signed the
bankruptcy trustee under the bankruptcy proceedings. Location bankruptcy trustee at the
time of registration documents is not set the application for registration of a contract - the
sale filed only buyer K.
Refusing to state registration of rights to immovable property, registering authority
referred to the impossibility of checking the authenticity of signatures of the parties in the
contract. Refusal of registration of property rights by the court considered justified and
appropriate requirements of paragraph 4 of Article 21 of the Law.
2. At the time of filing an application for registration of rights to immovable property,
the registering body made registration liquidation seller - TOO "E" with
corresponding information in the Unified State Register and in the national database of
legal entities. Refusal of registration rights by a notary of transaction adjudged
legitimate.
LLP "C" in the court appealed the denial of registration of real estate rights, arguing
that under the contract - the sale of immovable property concluded between LLP "C" and
LLP "E" March 21, 2010, they purchased real estate in the form of land area, with a total
area of 50 hectares. On Land competent authority issued certificate on the right of private
property from October 13, 2011. Registering Authority refused registration of real estate
rights under subparagraphs 1) and 3) of paragraph 1 of Article 31 and paragraph 4 of Article
31 of the Law.
Meanwhile, by virtue of paragraph 2 of Article 152 G'K, a transaction made in
writing and must be signed by the parties or their representatives, unless otherwise follows
from the customs of business turnover. In accordance with paragraph 1 of Article 22 of the
Law, in cases where rights arise under the contract or transaction in the absence other their
notarization, an application for state registration of rights to immovable property in the
established order must be filed by all parties in the transaction. Consequently, the
authentication signature of the person who committed the transaction is carried out by
comparing the signature of the signature available to it, the identity card, passport or other
substitute document and the specimen signature in the statement, made in the presence of the
employee receiving the application.
In accordance with Article 35 of the Civil Code, the legal capacity of a legal entity
shall arise at the time of its creation and ends at the completion of its liquidation. LLP "E",
which is party to the transaction, based on the order of the Department of Justice of the
Aktobe region from June 17, 2011 eliminated. At the time of filing an application for
registration of rights to immovable property, the registering body made profile liquidation of
LLP "E" with corresponding information in the Unified State Register and in the national
database of legal entities.
Thus, the termination of the legal entity, which is one of the participants in the
transaction, the court found the basis for the refusal to accept documents received for state
registration under subparagraph l) of paragraph 1 of Article 25 of the Act and the denial of
registration by the registration body recognized right.
By the Law are no special rules governing the registration of the transfer of rights to
the transaction in the case of liquidation of one party to the transaction.
3. Lack of state registration of rights to immovable property arising under a contract
entered into before the adoption of the Act excludes the application of legal disputes to
paragraph 3 of Article 37 of the rights arising under earlier requirements of
Kazakhstan legislation applicable at the time of disposition.
K. appealed against the refusal of the registration authority registration rights. The
court found that under the contract K. - sales from December 5, 2003 acquired household.
For the state registration of property rights K. appealed in 2013.
In accordance with paragraph 3 of Article 22 of the Decree of the President of the
Republic of Kazakhstan dated December 25, 1995 № 2727 "On state registration of rights to
immovable property and transactions with them," the expert of the registration authority to
verify the authenticity of signatures of persons who have committed the transaction, as well
as their compliance with the will of the consent. Registering Authority refused registration
of real estate rights with reference to paragraph 2 of Article 22 of the Law.
Court found unlawful refusal to substantiate their findings and the requirements of
paragraph 1 of Article 24, paragraph 3 of Article 37 of the Law. According to these rules of
law legal documents must comply with the legislation of the Republic of Kazakhstan, the
requirements imposed on them at the time of registration, except emerged earlier rights to
immovable property, which must comply with the legislation of the Republic of Kazakhstan,
in force at the time of the rights (encumbrances).
Appeal proceedings were terminated in connection with the refusal of the defendant
appeal.
The court's findings are controversial.
Paragraph 3 of Article 37 of the Law regulates the particular state registration:
changes emerged earlier termination rights immovable property (encumbered) recognized
arisen without state registration in the legal inventory, or encumbrances in respect of
establishing emerged earlier rights, which must submit proof of previously accrued right to
immovable property.
K. applied for registration of rights to immovable property and not modifies or
terminates previously arisen rights to real estate. Her ownership of the disputed property in
accordance with paragraph 2 of Article 238 of the Civil Code does not arise, since the
contract is not registered.
It seems that the court should be guided by paragraph 1 of Article 24 of the Law,
according to which legal documents must comply with the legislation of the Republic of
Kazakhstan, shown to them at the time of registration.
At the time of referral to the registering body K. was a rule providing that in cases
where rights arise under the contract in the absence of notarization, the statement in the
prescribed manner shall be submitted by all parties to the transaction (paragraph 2 of Article
22 of the Law). The court found that the seller had no real estate in the Republic of
Kazakhstan, retired to Germany. The applicant has no real opportunity to find a seller. In
this situation, the applicant was entitled to sue the last known place of residence seller of real
recognition of the transaction in accordance with Article 154 of the Civil Code.
IV. Encumbrance
1. Actions registering authority deemed illegal due to the illegal termination of the
registration of encumbrance on real estate.
LLP "K" appealed to the court action GA "Department of Justice on the East
Kazakhstan region" on the termination of burden, arguing that in April 2011, LLP "K" filed
a lawsuit against the «A» to recover the debt, fines, damages for loss of profits. Ruling of the
court seized on real estate LLP "L": a building, a warehouse, mortar unit. «A" reliably
knowing about taking measures court to conceal the property transferred mortar unit with
adjacent land to the new owner LLP "H" on the basis of the transaction of purchase - sale. I1
inspection I encumbrance October 8, 201 1 year, staff from the Department of Justice made
the registration of ownership but the contract - the sale of mortar with the adjacent node land
on the LP "H".
By the court was satisfied with the following information. Pursuant to the court's
decision on interim measures and on the basis of a writ of execution, the bailiff May 10,
2011 issued a decree banning pas alienation and mortgage real estate in the form of mortar Begonia unit with land, land plot polygon and warehouse building with the land owned by
«A». Decision received on May 10, 2011 GA "Department of Justice" for execution.
As the cost of the solution-concrete unit with land commensurate to the demands
after receipt prescription prosecutors Ust - Kamenogorsk on July 15, 201 1, the bailiff
ordered that the partial lifting of the ban on the alienation of real estate mortgage and the
remaining property. 11a mortar - concrete plant with land ban is not canceled and had to be
registered as an encumbrance at the time of consideration of the case.
The Court, while recognizing the illegal actions of the registering authority for
registration mortar site owned by «A», under arrest by order of the court bailiff, said that the
ban on alienation of property decree bailiff is not canceled. Illegal cancellation burden was
reasonable basis for registration of rights to immovable property for the new owner of LLP
"H" in a transaction that is not invalidated in the manner prescribed by law.
2 The applicant's claims to invalidate the action of the registering authority and
assigning responsibilities to register rights to immovable property cannot be satisfied,
if at the time of registration of encumbrances applicant has no rights to the disputed
property.
G. challenged action of the registering authority of the North - Kazakhstan requested
oblige defendant register applicant's property rights to real estate, to recover moral damages
10 000 tenge.
Judgment of the Court was satisfied in part. The actions of the registering authority
for registration of encumbrances on the basis of the decision of the Tax Department of the
restrictions on the disposal were declared illegal. The refusal to register the applicant's
property rights to these objects was declared illegal. To the registration authority was
entrusted to register ownership of the disputed objects to the definition for G. time of
registration of property rights, the date and time of registration in accordance with the time
of application. In meeting the rest of the application is denied.
Appellate instance court decision changed, reversed the decision in part to meet the
requirements of G., made in this part of the new decision to dismiss the claim with the
following information. Between G. and LLP "A" contract of purchase and sale November
24, 2008 under which he purchased from LLP "L" real estate for 4 220 000 tenge, which was
payable in up to 24 November 2009. G. plaintiff has paid November 20, 2009.
In the registration of ownership G. denied due to the fact that February 10, 2009
registered encumbrance imposed 11alogovym department according to the decision on
restrictions on the disposal of property on account of the taxpayer's tax debt, which was not
appealed and overturned. G., as the rightful owner, was entitled to appeal against the
decisions of state bodies in the case of violation of its rights, freedoms or legitimate
interests.
3. Registration of additional agreements to change (decrease) in the liability of the
debtor under the loan agreements without having to replace the collateral new (other)
burdens arise. The refusal to register them is illegal.
X. appealed in court refusal of the Ekibastuz State Department of Justice to register
any additional agreements to loan agreements.
The court found that under the loan agreement signed with the Bank on
March 17, 2007, X. credit issued 6 525 000 tenge. X. granted bail: shop building with land,
private house. Pledge agreements registered with the registering body. X. between the Bank
and the September 27, 2010 additional agreements to the general loan agreement dated
March 19, 2007 and to the loan agreement dated March 20, 2007 on the subject of lowering
interest rates.
On October 21, 2011 between the Bank and X. Was signed additional agreements
№1 and №2 to the pledge agreement, pursuant to which a fee is payable under the loan
agreements. Due to the fact that changes to the pledge agreement are also subject to state
registration,
On October 24, 2011 X. appealed to the Justice Department Ekibastuz. However, it refused
to register.
Decision of the municipal court statement X. refusal to invalidate found to be
unsubstantiated, indicating that the immovable property X.: shop building and residential
building have already been registered encumbrances, the mortgagee sale of the collateral
in case of default or improper performance of its obligations. Refusal of registration of
rights without purchasing the rights of the temporary paid land is declared illegal.
KH "T" appealed to the court to invalidate the refusal GA "Department of Justice of
the Mendykarin district of the Kostanai region" in the registration of land use rights on the
basis of evidence on the acquisition of the mortgaged property pas auction.
The court found that the registration is suspended under Article 25 of the Act, and
subsequently refused to register with reference to Article 31 of the Act and subparagraph 7)
of paragraph 2 of Article 33 of the Land Code. During the period of suspension of
registration are not eliminated circumstances which were the basis for the suspension.
Satisfying the requirements of the KH"T" the court found that the registration
authority wrongfully denied registration, which violated the rights and lawful interests of the
applicant, with the following. Decision to suspend the registration of the applicant has not
appealed. KH "T" presented documents in full and adopted by the registration authority. In
fact, the basis for the suspension of state registration served as prosecutor for clarification
answer the provisions of Article 20 of the Law "On Mortgage". The notice of refusal
referenced pas subparagraph 7) of paragraph 2 of Article 33 of the Land Code that deal with
land is prohibited, as the right not redeemed, and the applicant should redeem him.
Meanwhile, in accordance with the said rule of law is not permitted transactions in
respect of land use rights of land granted by the right of temporary use of land for peasant or
farming and agricultural production except Pledge.
According to paragraph 1 of Article 33 of the Land Code, is not required to buy the
rights of temporary paid land use (rent) for pledging, including the sale of collateral in case
of default the mortgagee or improper performance of its obligations. Therefore, the
requirement that temporary land foreclosure law is not based on the law.
In accordance with Article 20 of the Law "On Mortgage real estate" in the case of
default by the debtor of the principal obligation mortgagee may satisfy their requirements
by: 1) the implementation of mortgages in court; 2) implementation of the mortgage extra
judicially, if it is provided by legislative acts or in the mortgage agreement or subsequent
agreement between the parties; 3) access to its ownership of the mortgaged property in
accordance with Article 32 of this Law in the case of invitations to tender is not valid.
KH"T" has acquired the right of temporary land use in accordance with this rule of
law in the auction, has received the certificate of purchase collateral. Performance is not
challenged and not canceled. Link the defendant to clarify prosecutors untenable.
5. Seller shall transfer the goods are free from any disposition of third parties, except
in the case when the buyer agreed to take the goods subject to the rights of third
parties. Failure to fulfill this obligation, the seller gives the buyer the right to demand a
reduction in the price of goods or cancellation of the contract and damages, unless it is
proved that the buyer knew or should have known about the manners of third parties
on this product.
P. plaintiff, a representative of the apartment owners, filed a lawsuit LLP "O", the
Bank for the release of the land plot of encumbrances as collateral. The lawsuit is motivated
by the fact that refused to register a condominium apartment building as land, which is
located multi-storey residential house pledged for liabilities builder LLP "O".
Board of Appeals decision of the court to dismiss the claim was upheld.
The Court has found that residents of a multistory building acquired ownership of a
dwelling on the basis of contracts - sale of apartments in high-rise building, the construction
of which was carried out by the seller LLP "On", followed by registered ownership of the
land. For this property registered encumbrance in the form of collateral, arrest imposed by
Resolution bailiff, and restrictions on the disposition of property by the decision of the tax
administration on r Akgobe.
According to the Rules of state registration of the condominium, approved August
24, 2007 "The subject property is recognized condominium complex consisting of a land
plot (land), primary and secondary objects, which is established in accordance with the laws
of the Republic of Kazakhstan ownership of real property in the form of condominium.
Condominium object should be registered as a single complex in accordance with the law on
registration of rights to real estate, local departments of justice, carrying out state registration
of the location of the real property (hereinafter - the registration authority).
The court dismissed the case with reference to the requirements of paragraph 1 of
Article 413 of the Civil Code, which specifies that the seller is obliged to transfer the goods
free of any rights of third parties, except in the case when the buyer agreed to take the goods
subject to the rights of third parties, is lawful. Failure by the seller to the buyer of this duty
gives right to demand reduction of the price of goods or cancellation of the contract and
claim damages if it can be shown that the buyer knew or should have known about the rights
of third parties on this product.
As the court's findings are consistent with the provisions of paragraph 2 of Article
240-6 of CCP that claims the release of property from seizure may be offered the owners or
persons owning property on the right of economic management, operational management,
and permanent land or on other grounds envisaged by legislative acts or agreement of
solutions in sight. Plaintiff, like other owners of apartments purchased living room
(apartment) shared construction contract (purchase) without encumbrances. Complained
encumbrance as collateral land plot restricts the rights of participants condominium
management joint property, in which the premises are in an individual (separate) property of
citizens, legal persons, state, and common property belongs to] them on the common
ownership.
6. Encumbrance of arrest, on the Land belonging to the plaintiff prevents ownership
and disposition of the property but the will of the owner.
S. filed a lawsuit to the Mayor's Office for the release of land owned by him
ownership, arrest imposed by resolution of the investigator DBEKGT on the Aktobe region
in the criminal case on the basis of Articles 161, 202 of the Criminal Procedure Code of the
Republic of Kazakhstan. Specified norms established that in order to enforce the judgment
in the civil claim, other property claims or possible confiscation of property, the investigator
or the court may seize the property of suspected, accused or persons having financial
responsibility for their actions.
From the content of judicial decisions in the criminal case is seen that the plaintiff is
not S. suspect, accused or the person obligated to fulfill civil obligations by a court, and is
not responsible for its implementation of its property. C. acquired ownership disputed land
by order of Akimat on March 1, 2001, ownership registered in the Department of Justice.
The trial court allowed the claim stating that the burden of arrest to prevent Land
ownership and disposition of property by will of the owner.
Meanwhile, according to the law № 148 from January 23, 2001 "On local
government and self-government in the Republic of Kazakhstan" the city administration is a
collegial executive body. Upon presentation of the claim to the local executive body of the
defendant is a relevant Akim administrative - territorial unit (paragraph 6 of regulatory
decisions of the Supreme Court "On some issues of the courts of the land legislation").
However, the Court recognized the right to sue Mayor's Office.
In addition, by virtue of paragraph 2 regulatory decisions of the Supreme Court of
the Republic of Kazakhstan № 2 dated March 24, 1975 "On judicial practice
the release of property from seizure, "claims the release of property from seizure imposed on
the debtor and the claimant. If the seizure is made in connection with the confiscation of
property, as defendants convicted involved and the authority empowered to organize work
on accounting, storage, evaluation and further use of the property, facing (incoming) in the
republican ownership (part 4 of Article 240-6 G1IK) appropriate financial institution.
In violation of paragraph 2 of the defendants but this category of disputes on the
studied cases involved not specified persons and local executive bodies.
Failure to comply with these rules of law led to an incorrect setting of the circumstances
relevant to the proper resolution of the case.
7. Deregulate foreclosure on the property of an insolvent debtor is a consequence of the
excitation of bankruptcy proceedings HPH bankruptcy. Such effects are not provided
with the introduction of rehabilitation procedure, in this connection, in a lawsuit for
the release of property from encumbrances denied.
Rehabilitation manager of JSC "M" filed a lawsuit against the Bank obliging remove
bail and returned belongs to him by right of private ownership of immovable property
located in Aktobe, arguing that the defendant refuses to withdraw the deposit and return the
property to the mortgagor, the Bank included in the register creditors' claims in the third
turn.
Decision of the court refused to satisfy the requirements with the following
information.
In accordance with Article 35 of the Law "On Bankruptcy" a court decision against
the plaintiff applied rehabilitation procedure. Consequences of excitation for bankruptcy are
stipulated by Article 68 of the Law "On Bankruptcy". Under subparagraph 6) of paragraph 1
of the rule of law since the court's decision to declare the debtor bankrupt and liquidation
removed all legal restrictions on the foreclosure on the property of the insolvent debtor.
Article 46 of the Law "On Bankruptcy" (as amended up to December 17, 2012) provides for
the consequences of the introduction of rehabilitation procedure, one of which is to stop the
accrual of penalties (fines, penalties) on all types of debt of the debtor, as well as interest on
the loan.
The above provisions of the law mean that the removal of all legal restrictions on the
foreclosure on the property of an insolvent debtor is a consequence of the excitation of
bankruptcy proceedings in bankruptcy.
Under subparagraph 6) of paragraph 1 of Article 68 of the Law "On Bankruptcy",
since the court's decision to declare the debtor bankrupt and eliminate it removed all legal
restrictions on the foreclosure on the property insolvent debtor. Such effects are not provided
with the introduction of rehabilitation procedure. Rehabilitation manager LLP "M" in
support of the claim indicated that the removal of the collateral required for the sale of
property for the implementation of the rehabilitation plan.
Based on the above, as well as the provisions of Article 322 of the Civil Court is
noted the lack of legal grounds for termination of the pledge. The requirement to return
collateral found to be unsubstantiated, because the collateral is in the possession and use of
the mortgagor.
In accordance with the legislation on bankruptcy creditors' committee is agreed with
the rehabilitation plan approved by the court. Rehabilitation measures can include any
organizational economic, technical, financial, economic, legal and otherwise, do not
contradict the legislation of the Republic of Kazakhstan, the measures aimed at restoring the
solvency of the debtor, including reorganization, sale of assets (assets) through a tendering
process, the assignment of rights claims of the debtor, forgiveness of the debt, debt interest
and penalties, debt-for-shares, settlement agreement and more.
V. Registration of changes of identification characteristics of the property
1. Requirements for registration of a change of identification characteristics on the
property set in the law and provide for the mandatory consent of the other owners for
their registration. The refusal of the registration authority in the register of changes at
the request of the co-owners of the court on these grounds was found as lawful and
justified.
According to the Article 6 of the law change identification characteristics of the
property is necessary for the conduct of legal inventory, subject to state registration.
F. refusing to register changes of identification characteristics apartments, registering
authority referred to the mismatch of technical passport form and content requirements of
the legislation, namely, the lack of notification of the modification of the technical
characteristics of the co-owners of the apartment.
Such arguments the court correctly recognized wealthy as in accordance with
paragraph 5 of Article 22 of the state registration of changes, termination of the right of
common share property (other common law) application for state registration must be
submitted by all participants, certified by a notary.
2. Submitted for registration documents conform to the technical specifications s
facility and in accordance with subparagraph 3) of paragraph 1 of Article 31 of the
applicant refused registration of rights to immovable property.
B. purchased at auction real estate: dining room, auditorium, canteen total area of
963.90 square meters 2, with a land area of 0.3632 hectares, while the original documents
were missing property; they were in the People's Bank. Later he learned that the
reconstruction of the real estate and obtain a new product data, the act of the land. These
documents during the bidding are not presented, and B. believed that the property he
acquired in good faith, according to the documents.
Department of Justice of Zhambyl denied B. state registration of rights to immovable
property. Grounds for refusal of registration were a discrepancy in the technical
documentation of the property. A contract of sale B. purchased dining room, auditorium and
a snack bar with total area of 2963, 90sq.m. Meanwhile, according to the data sheet and
State Act of August 1, 2008, the object is registered as a cafe, restaurant and billiard room
with total area of 2896, 70sq.m.
By the court decision correctly rejected to B. an application to compel the
registration of real property as shown on the registration documents did not meet the
technical specifications of the object. The court's findings are consistent with subparagraph
3) of paragraph 1 of Article 31 of the Law establishing the grounds for refusal of state
registration of real estate Era.
VI. Suspension of registration rights
1. One of the reasons for the suspension of state registration of rights to immovable
property in accordance with subparagraph 1) of paragraph 1 of Article 27 of the Law
is the decision (ruling) of the court on the basis of claims and other applications
(complaints) filed with the court.
M. appealed to the court to invalidate the actions GA "Department of Justice Semey"
to refuse the registration of rights to immovable property acquired them at auction on
January 31, 2012, and notice of suspension of registration from May 15, 2012.
The court found that the reason for the suspension of registration of a registered
encumbrance was the presence at the request of the owner R. presentation in connection with
its claim to the court for recognition of real estate valuation and trading invalid.
Decision of the municipal court to satisfy the request of M. illegality registering authority
denied stating that the owner of the disputed trades. The court referred to subparagraph 2) of
paragraph 1 of Article 29 of the Law, according to which the applicant may apply to the
registering authority with the application for registration of a temporary cease-temper
(encumbrance temper) belonging to its real estate. Within the meaning of this provision
basis for such treatment may include: loss of the copy right of entitlement of document or
other cases where it appear unreasonable risk of loss of property against the will of the
owner, except in cases of forced termination of the rights of the property on the grounds of
the Legislative acts of the Republic of Kazakhstan.
Registration rights (encumbrances) on real estate that arise consent of the authors, are
suspended until the review right holder statements temporary cease register gigs, pursuant to
paragraph 4 of Article 29 of the Law.
Thus, the actions of the registration authority recognized by the court as lawful and
do not violate the rights and lawful interests of the applicant.
Supervisory judicial board but civil
and administrative cases
of the Supreme Court