When a situation arises related to the voluntary or forced alienation of residential premises, members of the owner's family often have questions about what rights they have to the residential premises. Do family members have the right not to leave the housing if the owner voluntarily alienates it? In the event of forced termination of ownership, do family members have the right to live in the housing received as compensation for the previous housing?
Who is a family member of the apartment owner?
In accordance with Article 21 of the Law of the Republic of Kazakhstan "On Housing Relations", the following are considered family members of the owner of residential premises:
- a spouse living together with the owner of the residential premises;
- children of the owner of the residential premises;
- parents of spouses and children who have their own families and permanently reside with the owner are recognized as members of the owner’s family only by mutual consent;
- disabled dependents, if they permanently reside with the owner;
- in exceptional cases, other persons, if they have permanently resided with the owner and have been running a common household with him for at least 5 years.
Eviction in case of voluntary alienation of housing by the owner
In accordance with the norms of civil legislation, the owner has the right to dispose of his property at his own discretion, that is, to sell, donate or otherwise alienate his home without the consent of family members who are not its owners.
In connection with the termination of the right of ownership of housing by the will of the owner (sale, donation), the members of the owner's family, former members of the owner's family and temporary residents are obliged to move out of the residential premises. As a result, family members do not have the right to demand the provision of other residential premises from the previous owner or purchaser of the housing, unless otherwise provided by the agreement with the purchaser of the housing (clause 2 of Article 30 of the Law "On Housing Relations").
Consequently, the purchaser of residential premises has the right to apply to family members with a demand for eviction, since their presence deprives him of the opportunity to exercise his rights in relation to the property belonging to him. In turn, neither the previous owner nor the purchaser of housing is obliged to provide family members of the previous owner of the residential apartment with new housing. In the event that the purchase and sale agreement or the deed of gift or other agreement on alienation of housing provides for the obligation of the purchaser of residential premises to provide family members of the previous owner with new housing, only then the family members have the right to claim it.
Eviction due to forced termination of ownership of housing
In accordance with paragraph 1 of Article 29 of the Law "On Housing Relations", forced (against the will of the owner) termination of the right of ownership of housing is permitted in the following cases:
- foreclosure on housing together with the land plot for the owner’s debts;
- requisitions;
- confiscations;
- forced alienation of the land plot on which the house is located for state needs;
- demolition of emergency housing that is at risk of collapse.
When the right of ownership of housing is terminated as a result of requisition, forced alienation of the land plot on which the house is located for state needs and demolition of emergency housing that threatens to collapse (collapse), members of the owner's family are evicted from the housing and acquire the right to live in housing received as compensation for the previous housing. Other persons living in the previous housing are evicted without being provided with other housing (clause 1 of Article 30 of the Law "On Housing Relations").
That is, family members, along with the owner of the requisitioned property, have the right to live in housing acquired by the owner with funds paid by the state, or provided as property as a result of the seizure of residential premises (Article 253 of the Civil Code of the Republic of Kazakhstan (General Part)).
The forced alienation of a land plot on which a house is located for state needs and the demolition of emergency housing that threatens to collapse entails the obligation of the state to provide the owner of the residential premises with equivalent property (Article 255 of the Civil Code of the Republic of Kazakhstan). Providing the owner with equivalent well-appointed housing or residential premises from the communal housing stock is the basis for the emergence of the right of family members to live in housing received by the owner as compensation for the previous housing.
Termination of the right of ownership of housing as a result of confiscation or as a result of foreclosure on housing together with the land plot for the owner’s debts excludes the right of the owner and family members living in the confiscated housing to claim the provision of other housing.
Eviction of minor family members who are not owners
The norms of the current legislation do not provide for a special procedure for the alienation of property voluntarily and forcibly in the event of minor family members living with the owner. The legislation does not contain exceptions for minor family members.
Therefore, in the event of the alienation of residential premises by the previous owner voluntarily, the new owner has the right to demand the eviction of all persons living in the residential premises belonging to him without exception. The forced termination of the right of ownership of residential premises in which minor members of the owner's family live is also carried out in accordance with the procedure established by law.