The plaintiff filed a lawsuit against the akimat of the city, in which he asked to recognize the ownership of the unauthorized two-story office building. The plaintiff motivated his claim by the fact that, on the basis of a sale and purchase agreement, he owns a land plot, the intended purpose of which is the construction of an office building. In 2013, the plaintiff, without the relevant permits for construction, carried out the construction of a two-story office building. This construction was carried out at our own expense. However, the acceptance into operation by the architecture of the city was denied due to the lack of permits for construction.
The akimat of the city did not agree with the claims, asked the court to dismiss the claim, referring to the following arguments:
- in accordance with paragraph 2 of Article 244 of the Civil Code of the Republic of Kazakhstan, a person who has carried out unauthorized construction does not acquire ownership of it. It has no right to dispose of the building – to sell, donate, lease, make other transactions. Unauthorized construction is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in paragraphs 3 and 4 of this article.
- the plaintiff carried out the construction without the appropriate permits, which grossly violated the norms of the Law of the Republic of Kazakhstan “On architectural, urban planning and construction activities in the Republic of Kazakhstan”.
By a court decision, the plaintiff’s claims were satisfied in full and it was decided to recognize the plaintiff’s ownership of the unauthorized two-story office building.
In deciding whether to grant the claims, the trial court proceeded from the following:
- In accordance with paragraph 1 of Article 244 of the Civil Code of the Republic of Kazakhstan, an unauthorized construction is a residential building, other building, structure or other real estate created without obtaining permits for this, required in accordance with the legislation of the Republic of Kazakhstan.
- The land plot designated for the construction of an office building on which the building is erected belongs to the plaintiff on the basis of private ownership.
- The plaintiff actually carried out the construction of an unauthorized structure, since, in accordance with the procedure established by law, he did not receive building permits from the relevant authority.
- The case file contains the conclusions of state bodies, according to which the building complies with construction, fire and sanitary and epidemiological norms and rules.
- According to paragraph 3 of Article 244 of the Civil Code of the Republic of Kazakhstan, the right of ownership of an unauthorized construction may also be recognized by the court for the person in whose legal use is the land plot where the construction was carried out.
- Under such circumstances, the court came to the conclusion that the claims of the plaintiff against the akimat of the city are subject to satisfaction.
The decision of the court by the defendant was not appealed to a higher authority and entered into force.