Obtaining a land plot in Kazakhstan for the property construction - Artyushenko & Partners real-estate boutique law firm, Kazakhstan : Artyushenko & Partners real-estate boutique law firm, Kazakhstan

In this article we will deal with the procedure of obtaining a land plot from the state. Kazakhstani legislation provides a company-developer with two mechanisms of obtaining a land plot owned by the state:

By participation in a tender; or
By way of a special procedure provided in the Land Code.

According to the general rule, land plots including those for the construction are provided in tenders (bids, auctions). However, there is a large list of exceptions where provision of a land plot will be arranged following to a procedure, provided in the Land Code.

The procedure of provision of a land plot by way of tender is envisaged in subparagraphs 3 – 7 art. 48 of the Land Code. Land plot goes to a tender after:

delimitation of a land plot;
determination of intended use of a land plot and its cadastral value;
decision on handling of tenders (bids, auctions);
publication of information regarding tenders (bids, auctions).

Local executive body (hereinafter referred to as “Akimat”) acts as a seller or lessor of a land plot. Proprietor of a land plot determine a form of a tender (bids, auction), starting price and the sum of a deposit. Decision on provision of a land plot or lease of a land plot is taken no later than two business days after the tender (bids, auction). Purchase agreement or lease agreement are concluded during one day from the date when decision is taken.

More detailed procedure of a tender on the sale of land plots or lease of land plots is provided in the Rules on Organization and Carrying Out of a Tender on the Sale of a Land Plot. Further, we will consider a procedure of obtaining a land plot provided in the Land Code.

1. Procedure of obtaining of a land plot provided in the Land Code

Procedure of obtaining a land plot provided in the Land Code is applicable in the following cases:

for the realization of investment projects;
foreign states and international organization according to international treaties;
state land-users of the Republic of Kazakhstan;
winners of bids (tenders) on construction of the objects held by the state authorities and when such construction demands provision of a land plot to the persons indicated;
individuals and legal entities for the exploitation and maintenance of buildings (constructions) owned to them based on property or other ownership rights including for the extension and reconstruction of buildings (constructions) on the adjacent territory according to the urban planning and (or) construction documentation approved in order established by the legislation of the Republic of Kazakhstan on architecture and urban planning;
participants of condominium for the exploitation and maintenance of condominium;
for the usage of green lands and hayfields to meet the need of the population on maintenance of their personal courtyard and gardening;
for the purposes of subsoil use based on the contract concluded according to the subsoil use law of the Republic of Kazakhstan;
as state land grant based on the contract concluded according to the investment law of the Republic of Kazakhstan;
to a participant of the special economic zone, autonomous cluster fund and developing company according to the legislation of the Republic of Kazakhstan on special economic zones;
from the state water fund containing territorial waters for the construction of artificial constructions;
for the needs of railway, automobile, marine and internal water, air, pipeline transport, for the needs of the communication and energetics as well as for the construction of other objects of national standing;
for the objects of common use intended to meet the needs of population (water pipe, heating pipe, waste treatment plant and other engineering and communication lines and systems) and for the objects for the objects of the special purpose;
for the establishment of zones with the special conditions of the land use;
for the maintaining of the personal subsidiary plot, gardening, individual residential and country construction;
for the private forest cultivation;
for the construction of objects, provided by the documents of the System of the state planning of the Republic of Kazakhstan, investment projects assuring state interests and achievement of the worthwhile aims;
scientific centers with the international participation and state industrial enterprises;
concession owner for the realization of concession projects;
social and entrepreneurial corporations with the status of national company for the realization of investment and innovation projects;
subjects of industrial and innovation activity for the realization of the industrial and innovation projects.

Procedure of obtaining the land plot for the construction of objects is regulated by the Art. 44 of the Land Code. General provision as for the order of the acquiring of the land plot is provided in the Art. 43 of the Land Code. Last changes in the legislation of the Republic of Kazakhstan to the Land Code a new article 44-1 has been added regulating provision (granting) of a land plot for the construction within the range of the inhabited locality. These changes came into force from the January 1, 2015.

Land Code in the part of regulation the conditions on the provision of land plot by the state was amended by:

the Law of the Republic of Kazakhstan “On the Introduction of Changes and Additions to the Certain Legislation Acts of the Republic of Kazakhstan on the Questions of the State Government” dated 2 July 2014 (hereinafter referred to as “New Law №1”). Changes in the procedure of the provision of the land plot, adopted by this law came into force from January 1, 2015;
Other changes were adopted by the Law of the Republic of Kazakhstan dated December, 29 2014 “On the introduction of changes and additions to the certain legislation acts of the Republic of Kazakhstan on the Questions of the Cardinal Improvement of Conditions of Entrepreneurial Activity in the Republic of Kazakhstan” (hereinafter referred to as “The New Law №2). These changes relating to the existing provisions of the Land Code on the provision of land plot came into force from January 1, 2015.

Last novelties to the Land Code changed considerably the order of the obtaining the land plot for the construction of objects.

According to the New Law №2 provision of Art. 43 of the Land Code regulating the procedure of obtaining the land plot is not applicable to the provision of land plot for the construction of objects.

Old version of the code allowed to apply provisions of the Art. 43 as well as Art. 44 of the Land Code for the obtaining of the land plot for construction. New Law №1 amended Art. 43 of the Land Code introducing Subparagraph 1-1, in the second clause of which it is indicated that the particulars of the provision of a land plot depending on the designated use are determined by the Articles 44 and 45 of the Land Code.

Analyzing the procedure of the provision of the land plot in the new redaction of the Paragraph 1 Art. 43 which had been adopted later than Subparagraph 1-1 has been introduced it becomes clear that separate exclusions from the general procedure are envisaged, for example, for the land plot intended for the construction within the range of the inhabited locality.

Therefore, the general provisions of Art. 43 will govern the procedure of the provision of a land plot for the construction of the objects with the particulars of Art. 44 of the Land Code.

Now the procedure of the obtaining the land plot for the construction is as follows:

Application on the provision of the right to a land plot;
Preselection of the land plot;
Conclusion of the commission on the provision of the land plot;
Land use project;
Decision on the granting of a right for a land plot;
Agreement of purchase and sale or temporary (short-term/long-term) land use;
Delimitation of the land plot in the field;
Identification document for the land plot;

There are particularities in the procedure of obtaining a land plot for the construction of separate types of construction, as well as for the individual residential construction and construction within the range of the inhabited locality (see Para. 2 below).

Provision of a land plot by the state is subject to remuneration. In certain cases, for example, with concession agreements or when land plots of a certain size are transferred for the individual residential construction such land plots are transferred free of charge. Cadastral value of the land plot is approved by the State Agency «Division of Land Relations» being part of the local executive bodies (hereinafter referred to as – “Division of Land Relations”) at the moment of preparing of the decision to grant a land plot.

Specific procedure is provided when land plot being in land use is bought out. Such procedure is regulated by Para. 3, Art. 47 of the Land Code. The whole procedure consists of submitting application to the local Akimat; after Division of Land Relations approves cadastral value of the land plot and prepares a project of a decision on the granting of the title to a land plot. Decision on granting of a land plot is taken during fifteen working days from the moment of submitting of an application, after that purchase and sale agreement is signed.

1.2. Application on the granting a title to a land plot

For the granting of a land plot, it is necessary to submit an application to the Akimat at the place where land plot is situated. From January 1, 2015 there is a necessity of the executive body to provide an applicant with a document confirming the application.

The application consists of:

Aim of the usage of the land plot (in our case for the construction);
Its supposed size (defined according to the approved by the legislation of the Republic of Kazakhstan norms of land allocation for these types of activities or according to the urban planning and construction documentation);
Location (approximate location of a land plot);
Solicited right (property right, right to the permanent use of land, right to the temporary use of land for a fee (long term, short term) land use (lease), right of temporary land use without charge);
Availability of the other land plot (land plots for the personal subsidiary household in the country).

Application on granting of a right to a land plot during three days is transferred to the Division of Land Relations at the place where a land plot is situated. Division of Land Relations defines the possibility to use a land plot according to the designated use based on the territorial zoning. Respective conclusion is prepared up to ten working days from the moment of the receipt of the application.

Application is considered up to two months from the moment of its receipt. Granting of the land plot may last for an indefinite term because these two months comprise terms:

of making of the Land use project;
time for the necessary arrangements if the land plot contains buildings, constructions, engineering communications and green plants;
delimitation of the land plot in the field.

Grounds for the refusal of the consideration of an application are submission of incomplete file of documents; or (from January 1, 2015) if the applicant is in the registrar of persons from whom land plots where withdrawn compulsorily. Refusal is given to the applicant during two working days.

1.3. Preliminary selection of a land plot

Procedure for preliminary selection of a land plot for the construction of object is regulated by Para. 1 Art. 44 of the Land Code.
The results of the choice of the land plot for the construction of the object are formalized in the act on the choice of the land plot issued by the Division of Land Relations together with the directions / departments of architecture and urban planning as parts of Akimats (hereinafter referred to as – “Departments of Architecture and Urban Planning”). Up to January 1, 2015 such acts were issued only by the Divisions of Land Relations.

The choice of a land plot and act on the choice of the land plot are carried out during ten working days with the consequent forwarding of an act on the selection of a land plot to the commission for the consideration and preparation of the conclusion.

1.4. Conclusion of the commission on the granting of a land plot

Conclusion of the commission together with the Land use project are significate facts in the obtaining the land plot for the construction.

Commission is created by Akimats from the number of delegates of local representative bodies, representatives of Divisions of Land Relations, Departments of Architecture and Urban Planning, National Chamber of Entrepreneurs as well as organs of local self-government bodies (if any). On the level of regions, cities of Almaty and Astana commission include also the bodies of the environment protection, rural and forest household, water fund, division of land relations. Other persons at Akimat consideration may be included as well.

Conclusion of the commission is drawn in two duplicates in the form of protocol decision during five working days from the moment of the granting of the preselection of the land plot for the construction of the objects, except for the cases when the land plot is provided for the construction in the range of the inhabited locality.

One duplicate of the positive conclusion of the commission during five working days is transferred to the applicant for the preparation of Land use project.

1.5. Land use project

Land use project is prepared on the grounds of the positive conclusion of the commission.

Land use project specifies the size of the land plot, its borders and placement, neighboring proprietors of the land plot and land users as well as encumbrances and easements on the land plot.

In case of the assumed withdrawal, compulsory take-over for the needs of the state the land plot calculations of the losses of the proprietors of the land plots and land users (lessees), losses of the agricultural and forestry production according to the type of the exactable lands.

1.6. Decision on granting of the land plot

Decision on granting or the refusal of granting of the land plot is taken by the local Akimats.

Changes, introduced from January 1, 2015 by the New Law №1 describe in more detailed way the procedure of the refusal of the provision of the land plot which is taken on the basis of the negative conclusion of the commission. Thus, the refusal should be taken during seven working days form the date of the rendering of the decision by the commission. Refusal should be motivated.

Decision on provision of the land plot should be taken during seven working days from the moment of the enacting of the decision by the commission.

Copy of the decision on the land plot provision or refusal to provide is given or addressed to the applicant during five working days from the moment of taking of the decision.

1.7. Purchase and sale agreement or agreement of temporary (short term / long term) for a fee (free of charge) land use

Purchase and sale agreement or agreement of temporary (short term / long term) for a fee (free of charge) land use is concluded by the Division of Land Relations on the basis of the decision on granting of a right to a land plot in no later than ten working days from the date of taking the decision.

Such agreement is subject to the state registration during six months from the moment of its conclusion following to the provisions of the Law on state registration of the rights to the real estate. Provision of a land plot to the temporary land use for a term less than one year is not registered (Para. 1 art. 38 of the Law on the State Registration of the Rights to the Real Estate).

Proprietor or lessee of the land plot becomes the right holder only from the moment of the state registration. If construction has been started on the unregistered land plot proprietor cannot register the accomplished object without parallel registration of a land plot. (Para. 1, Art. 38 of the Law on the State Registration of the Rights to the Real Estate). If the right to a land plot occurred prior to the creation of legal cadaster in Kazakhstan, it is necessary to apply for a systematic registration of the right to the land plot (Para. 2, Art. 38 of the Law on State Registration of the Right to the Real Estate).

Procedure for the registration of a right to the land plot corresponds to the general procedure of the registration of the right to the real estate and will be considered later in the article dedicated the accomplishment of the construction in the series of articles “Construction in Kazakhstan from A to Z”.

1.8. Delimitation of the boundaries of the land plot in the field

Delimitation of a land plot is made on the basis of the address of the applicant.

Boundaries of a land plot are defined according to the Rules of the Execution of the Land-Use Planning according to which land-use planning is done on the application of the interested proprietors of the land plots or land users. Land-use planning is done on the basis of the agreement concluded between individuals or legal entities carrying out land-use planning (Para. 1 Art. 2 of the Rules of Execution of Land-Use Planning).

Land-use planning on the application of the interested proprietors of the land plots and land users are carried at their expense (Para. 3 Art. 2 of the Rules of Execution of Land-Use Planning).

Land-use planning on the drafting of projects of agricultural land-planning on the creation and adjustment of the existing land-use, land allocation and delimitation of the land plots in the field is carried out in the following progression:

preparatory works;
creation of project of the land planning;
consideration, coordination and approval of the land-planning documentation;
execution of the project of the land-planning.

Prior to delimitation of the land plot in the field usage of such land plot is not permitted.

1.9. Identification document to the land plot

Identification documents are issued by the Republican State Enterprise on the Right of Economic Use «Development Center of the Land Cadaster» of the Agency of the Republic of Kazakhstan on the Management of Land Resources» (hereinafter referred to as – «Centers of the Land Cadaster»). Centers of the Land Cadaster initiates the land-cadaster profile based on the decision on granting of the land plot, land planning project and materials on delimitation of the land plot (art. 11-1 of the Rules of execution of land-use planning).

Identification documents to the land plot are:

the title to the land plot Act – if a land plot is a property;
the right to permanent land-use Act – if a land plot is in permanent land-use;
the temporary land use for a fee (long-term, short-term) land-use (lease) Act – if a land plot is in a temporary land use for a fee (lease);
the right to the temporary land use without charge Act – if a land plot is in a temporary land use without a charge.

For the issuance of every of the mentioned above identification documents there is a standard of state service.

To apply for the respective identification document it is necessary to address to the Center of the State Cadaster or through Public Service Center (hereinafter referred to as “PSCs”). Documents are prepared during six working days (Para. 1. Art. 4 of the SSS). For their receipt, it is necessary to provide (Para. 9 of the SSS):

Respective application to the Center of the Land Cadaster;
The extract (copy) from the local Akimat ruling on granting of the respective right to the land plot;
Copy of the land-planning project;
Copy of the materials on the delimitation of the land plot in the field;
Copy of the purchase and sale agreement or temporary (short-term/long-term) for a fee (or no charge basis) land-use;
Notarized copy of the power of attorney confirming powers of the representative;
Billing document (receipt) on the payment of the services for the preparation of the act on the title to a land plot;
Identification document of the costumer (original is provided for the purposes of identification of the costumer).

2. Particularities of the obtaining the land plot for the construction within the area of the inhabited locality as well as for the construction of the separate categories of buildings / construction and individual housing construction

New Law №1 starting from January 1, 2015 introduced an article 44-1 providing particularities of the obtaining the land plot for the construction within the range of the inhabited locality.

Certain provisions of Art. 44 of the Land Code provide for the particularities of obtaining the land plot for the construction of certain buildings and constructions.

Obtaining a land plot for the individual residential construction is regulated by the Rules of the granting a right for the land plots for individual residential construction.

2.1. Obtaining the land plot for the construction within the range of inhabited locality

Whilst obtaining the land plot within the range of inhabited locality it is necessary to go through a procedure that is similar with those mentioned above but which has some characteristic features. This procedure has several steps in it:

Application on the provision of the title to the land plot;
Preselection of the land plot;
Negotiation of the preselection of the land plot;
Decision on the provision of the right to the land plot with the application of the land cadastral plan and technic specifications for the connection to the utilities;
Agreement of the temporary (short-term, long-term) for a fee (or no charge basis);
Delimitation of the land plot in the field.

Main features of the land plot provision in the inhabited locality are:

Necessity to the obligatory negotiation of the preselection of the land plot with the respective state authorities;
Drafting of the land cadastral plan on the basis of which a decision on the granting of the land plot is taken;
Possibility of the obtaining of the land plot only for a land use. Consequent land plot buy-off (getting the ownership rights) is permitted only after commissioning of the object (getting the operation rights).

Except of the mentioned above particularities article 44-1 of the Land Code provide certain procedural specifics of the obtaining the land plot within the range of inhabited locality:

Application on the provision of a land plot is not provided to the Akimats but through the portal of electronic government egov.kz or through the PSCs. Application should contain the scheme of the land plot in the electronic format.
Act on the selection of a land plot is prepared in the longer delays on condition of its necessary negotiation. The land plot selection act is prepared during seven working days by Departments of the Architecture and Urban Planning which negotiate this act with all interested authorities. Positive conclusions are prepared during twelve working days and obtaining the technical specifications to the connection to the utilities during five working days the definite act of the selection of the land plot is issued. After this during three working days negotiation of the act on the selection of the land plot with the applicant. Therefore, it takes approximately one months and a half to formalize act on the selection of the land plot, after this the applicant receives the notice on the date of the receipt of the agreement on the temporary land use for the signature.
Land cadastral plan is prepared by the Centers of the Land Cadaster during ten working days and addressed to the Divisions of Land Relations where it is approved during three business days.
Decision on the granting of the land plot is taken by the local Akimats during five working days from the moment of the approval of the land cadastral plan. Copy of the decision and the agreement which is prepared by the Divisions of Land Relations during one working day are addressed to the applicant for the signature through the portal egov.kz or through the PSC. This agreement is signed by the applicant during three working days after the receipt of the notice.

2.2. Obtaining the land plot for the construction of certain categories of buildings / constructions

When it comes to the application of a land plot for construction of the objects of oil and gas infrastructure related to the transport via main pipe-lines, consequent storage and transshipment of the oil and gas to the other types of transport act on the selection of the land plot and land use project are subject to be negotiated with additional authorities. Such as the Committee of the Ecologic Regulation, control and the state inspection in the oil and gas network of the Ministry of Energy of the Republic of Kazakhstan.

Construction of the residential houses, including detached houses, on the lands of agricultural purpose is permitted only after transfer of the said land to the category of lands of the inhabited localities according to the approved general plan of this inhabited locality (or other project documentation instead of general plan for the small rural inhabited localities) and only when the project of the detailed planning or the project of construction are available.

Provision of the land plot for the construction of the cultic building (construction) is made only after permission of the local Akimat on its construction.

2.3. Obtaining the land plot for the individual residential construction

Within the range of inhabited localities on the grounds intended for the allotment for the individual residential construction land plot for the individual residential construction is provided according to the general plan, planning projects and construction and project of land-utilization of territories (Art. 2 of the Rules on the provision of the rights to land plots for individual residential construction). Applications of the citizens are recorded in the special list and satisfied so far as the grounds for the allotment are prepared or when the free territories for the individual residential construction (Para. 8 (11) Art. 44-1 of the Land Code).

Provision of the land plot for the individual residential construction in the inhabited localities with the population lower than five thousand is made according to the scheme of the development and construction of the inhabited locality (simplified variant of the general plan) (Para. 2 of the Rules of the Provision of the Right to the Land Plots for Individual Residential Construction).

Land plots, excluding those included in the list of the land plots intended for the tenders (bids, auctions) for individual residential construction are provided to the citizens of the Republic of Kazakhstan free of charge in the amount of 0,10 hectares (Art. 3 of the Rules of the Provision of Rights to the Land Plots for the Individual Residential Construction).

Regulatory framework applied

Land Code of the Republic of Kazakhstan of June 20, 2003 (Land Code);
Law of the Republic of Kazakhstan # 310-III “On the state registration of the rights to the real estate” of July 26, 2007 (Law on the State Registration of the Rights to the Real Estate);
Rules of the organization of tenders (bids, auctions) on the sale of a land plot or lease of the land plot including in electronic way approved by the Order of the Minister of the National Economics of the Republic of Kazakhstan of August 1, 2006 (Rules of the organization of tenders on the sale of a land plot);
Rules on the provision of rights to the land plots for the individual residential construction approved by the Resolution of the Government of the Republic of Kazakhstan on August 1, 2006 (Rules on the provision of the rights to the land plots for individual residential construction);
Rules of the execution land-use planning in the Republic of Kazakhstan on the drafting of projects of the agricultural land-planning on the creation and improvement of the existing land tenures, allotment and delimitation of the land plots in the field, approved by the order of the Chairman of the Agency of the Republic of Kazakhstan on the Management of the Land Resources №72-П-а on October 7, 2004 (Rules of Execution of Land Use Planning);
Rules of the maintaining of the state land cadaster in the Republic of Kazakhstan, approved by the Resolution the Government of the Republic of Kazakhstan №958 on September 20, 2003 (Rules on the Maintaining of the Land Cadaster);
Standard of State Service “Formalization and issuance of the acts on the right to temporary free of charge land use” approved by the Resolution of the Government of the Republic of Kazakhstan №358 on April 16, 2014 (SSS);
Standard of State Service “Formalization and Issuance of the Acts on the Property Right to the Land Plot” approved by the resolution of the Republic of Kazakhstan №358 on April 16, 2014 (SSS);
Standard of State Service “Formalization and Issuance of the Act on the Right to the Temporary Free of Charge (Long-Term, Sort-Term) Land Use (Lease), approved by the resolution of the Republic of Kazakhstan №358 on April 16, 2014 (SSS);
Standard of State Service “Formalization and Issuance of the Act on the Right to the Temporary for a Fee (Long-Term, Sort-Term) Land Use (Lease), approved by the resolution of the Republic of Kazakhstan №358 on April 16, 2014 (SSS);

Artyushenko & Partners lawyers
Published on June 28, 2015

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