The transfer of a real estate object from one owner to another entails the transfer of rights to the land plot on which this object is located. Depending on the type of object, this transition is made in different ways. In some cases, the contract requires a direct indication of the land plot, while in other cases, the transfer of rights to land occurs automatically.
TRANSACTION WITH A PRIMARY PROPERTY
THE CONCEPT OF A PRIMARY OBJECT
In accordance with subparagraph 7) of Article 1 of the Law of the Republic of Kazakhstan “On state registration of rights to real estate and transactions with it”, a primary real estate object means buildings and structures of various functional purposes, as well as objects of special regulation and urban planning regulation.
REQUIREMENTS WHEN MAKING A TRANSACTION WITH A PRIMARY OBJECT AND A LAND PLOT
Paragraph 3 of Article 52 of the Land Code of the Republic of Kazakhstan states that the alienation of the right of ownership or the right of permanent or temporary land use to a land plot that is occupied by buildings (structures, structures), and is also intended for their operation, without the corresponding alienation of the said real estate, as well as the alienation real estate without a corresponding alienation of the land plot, which is occupied by the specified real estate, are not allowed.
Thus, this norm fixes the rule according to which a transaction with a primary object, that is, a building (structure, structure) is not possible if the subject of the transaction is not at the same time the land plot on which this property is located.
This rule also applies to a transaction with a part of the primary object. In this case, the corresponding part of the land plot is subject to alienation. If a part of the primary object is registered as separate, then the rules relating to the secondary object apply.
DEAL WITH A SECONDARY OBJECT
THE CONCEPT OF A SECONDARY OBJECT
The secondary real estate object in accordance with subparagraph 8) of Article 1 of the Law “On Registration of Rights to Real Estate and Transactions with It” is residential and non-residential premises, which, in order to register rights to them, are assigned cadastral numbers as objects of individual (separate) ownership rights. Each secondary object, in accordance with paragraph 1 of Article 40 of the said law, is considered as a separate real estate object, which is assigned an independent cadastral number for the purposes of state registration. Thus, secondary objects include: apartments, various premises (built-in store, office, etc.), provided that they are assigned separate cadastral numbers.
REQUIREMENTS WHEN MAKING A TRANSACTION WITH A SECONDARY OBJECT
In accordance with paragraph 2 of Article 40 of the Law “On State Registration of Rights to Real Estate and Transactions with It”, state registration of rights to secondary objects that are part of the condominium object does not require title and identification documents for a land plot. This means that when making transactions with apartments and non-residential premises that have been assigned separate cadastral numbers, they do not require simultaneous re-registration of land rights, since the transfer of rights to premises entails the transfer of rights to the corresponding share in the condominium (which includes the corresponding right to land plot).
This rule provides for one exception. In cases where a share in the rights to a land plot that is part of a condominium object is subject to redemption (for example, all cases when the premises are not intended for housing), in order to register rights to a secondary object or in case of its alienation, a condominium participant must submit a document confirming the purchase of a share in the right to a land plot (contract for the sale of the right to a share in common property).
CONSEQUENCES OF NON-COMPLIANCE WITH BUILDING AND LAND TRANSACTION REQUIREMENTS
In case of violation of the above rules when making a transaction with real estate, the purchaser of real estate will receive a refusal from the justice authority to register the transaction, with reference to the violated above norms of the Land Code and the Law “On State Registration of Rights to Real Estate and Transactions with It”.
Such a transaction can only be registered if it is completed by the parties in the proper form. For example, if the parties entered into a transaction for the sale of a building or part of it without the transfer of the corresponding rights to the land plot or part of it, they need to amend the concluded agreement, supplementing it with provisions on the transfer of rights to the land plot. If one of the participants avoids bringing the transaction in line with the law (for example, by selling a building or part of it without land, evades transferring rights to a plot or part of it), then the other participant in the transaction does not have the opportunity to obtain registration of the transaction, and therefore it remains for him to apply to the court for recognition of the transaction as invalid due to its inconsistency with the above norms of the law