The plaintiff filed a lawsuit against the city akimat, in which he asked to recognize the right of ownership of the unauthorized two-story office building. The plaintiff motivated his claim by the fact that, on the basis of a purchase and sale agreement, he owns a land plot, the intended purpose of which is the construction of an office building. In 2013, the plaintiff, without the appropriate permits for construction, built a two-story office building. This construction was carried out at his own expense. However, the city architecture department refused to accept it for operation due to the lack of permits for construction.
The city administration did not agree with the claims and asked the court to reject the claim, citing 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 an unauthorized construction does not acquire ownership of it. He has no right to dispose of the construction - sell, donate, lease, or make other transactions. An 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 construction without the appropriate permits, thereby grossly violating the provisions of the Law of the Republic of Kazakhstan "On architectural, urban planning and construction activities in the Republic of Kazakhstan".
By the court's decision, the plaintiff's claims were satisfied in full and it was decided to recognize the plaintiff's right of ownership to the illegally erected two-story office building.
In deciding to satisfy the claims, the court of first instance 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 structure, facility or other real estate created without obtaining the permits required in accordance with the legislation of the Republic of Kazakhstan.
- The land plot, intended for the construction of an office building, on which the structure was erected, belongs to the plaintiff on the basis of private ownership.
- The plaintiff actually carried out the construction of an unauthorized building, since he did not receive construction permits from the relevant authority in accordance with the procedure established by law.
- The case materials contain conclusions from government agencies, according to which the building complies with construction, fire safety and sanitary-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 building may also be recognized by the court for the person in whose legal use the land plot where the building was constructed is located.
- Under these circumstances, the court concluded that the plaintiff’s claims against the city akimat were subject to satisfaction.
The court's decision was not appealed by the defendant to a higher court and entered into legal force.