1. Real Estate Law
1.1. Please briefly describe the main laws that govern real estate in Kazakhstan. Laws relating to leases of business premises should be listed in response to question 10.1. Those relating to zoning and environmental should be listed in response to question 11.1.
The main laws that govern real estate in the Republic of Kazakhstan are:
- Civil Code (the General Part) dated December 27, 1994.
- Civil Code (Special Part) dated July 01, 1999.
- Land Code of the Republic of Kazakhstan dated June 20, 2003, num.442-II.
- Law “On state registration of rights to real-estate” dated July 26, 2007, num.310-III.
1.2. What is the impact (if any) on real estate of local common law in Kazakhstan?
Common law is not applicable in the Republic of Kazakhstan.
1.3. Are international laws relevant to real estate in Kazakhstan? Please ignore EU legislation enacted locally in EU countries.
The Republic of Kazakhstan is a party to more than 140 bilateral international agreements on the promotion and mutual protection of investments. These agreements allow foreign investors to invest in real estate sector in Kazakhstan as well.
2.1. Are there legal restrictions on ownership of real estate by particular classes of persons (e.g. non-resident persons)?
Citizens and non-state legal persons may own real estate property as private property, except for certain types of property (for example, strategic objects). The quantity and value of the private property is not limited.
For non-residents, there are some restrictions. Only citizens of the Republic of Kazakhstan can own land plots for the purpose of farm enterprises, private farming, afforestation, gardening and country construction.
Foreigners, foreign legal entities, and Kazakhstan legal entities, in which the authorised capital held by foreigners or foreign legal entities constitutes more than fifty percent, may own agricultural lands only the basis of temporary land use under a lease for a period of up to ten years.
3. Real Estate Rights
3.1. What are the types of rights over land recognised in Kazakhstan? Are any of them purely contractual between the parties?
In the Republic of Kazakhstan, there are no contractual types of rights over the land.
The following types of rights over land exist:
- Property right.
- Land use right (permanent or temporary, alienable or inalienable, acquired at a charge or free of charge).
Foreign land users may not own the right of permanent land use.
3.2. Are there any scenarios where the right to a real estate diverges from the right to a building constructed thereon?
The buildings ownership right (constructions) incorporates the right of ownership to the land which is occupied by specified buildings (constructions). The right of economic conduct or the right of operative management of public entities to buildings (constructions) incorporates the right to permanent use of the land occupied by these objects. These rights are inseparable from each other.
The alienation of the ownership right, or the right of permanent or temporary right to land use, of the land that is occupied by specified buildings (constructions) and is designed for operation without the alienation of the property, as well as the alienation of property without appropriate alienation of the land parcel that is occupied by the property, is not allowed.
The provision of land destined for exploitation under temporary land use, the buildings (constructions) on which are allocated to another person, without the proper delivery of the temporary use of the specified property, is not allowed.
Exceptions to the above exist. For example, the ownership of a linear pipeline portion is not connected with the ownership right to land on which they are installed.
4. System of Registration
4.1. Is all land in Kazakhstan required to be registered? What land (or rights) are unregistered?
The state registration of rights to immovable property, including land plots is a mandatory procedure of recognition and confirmation by the state of occurrence, for a change or termination of rights (encumbrance of rights) to real estate, in the legal cadaster.
However, it is not a mandatory to make a state registration in the legal cadaster for the following rights:
1) rights (encumbrances of rights) that arise on the basis of regulatory legal acts, including the right to stay on ‘not closed for public access’ plots of land, and the right to pass through them, i.e. the right to public casements; and
2) a land-use right for the term of less than one year, including the right of lease, free of charge use, and easements for terms of less than a year.
4.2. Is there a state guarantee of title? What does it guarantee?
In accordance with the Republic of Kazakhstan Civil Code, the right to property (title) is a recognised and protected legislative right of a person, at his discretion, to possess, use and dispose of property belonging to him.
The Constitution stipulates that the Republic of Kazakhstan shall recognise and by the same token protect state and private property.
Guarantees of the ownership are expressed also in the enactment of the law under the ways to protect property rights:
- Recognition of property rights.
- Replevin lawsuit (action vindicatio) - reclamation of property from illegal possession.
- Negatory action lawsuit (action negatoria) - on the elimination of all violations of the owners’ right, although these violations are not connected with the deprivation of possession.
4.3. What rights in land are compulsory registrable? What (if any) is the consequence of non-registration?
State registration if the legal cadaster is necessary for the following rights to land plots:
- the land-use right for a term of more than one year; and
- easement in favour of the ruling of the land parcel or other property for a term of more than one year.
The legal meaning of the state registration is that the rights on real property, including land plots subject to obligatory state registration in the legal cadaster, arise from the moment of their state registration.
That is, the legal facts (acts of public authorities, civil-legal transactions) by themselves do not entail the occurrence of the right, they are merely the basis for it. Rights arise from the moment of their state registration.
4.4. What rights in land are not required to be registered?
Please see question 4.1 above.
4.5. Where there are both unregistered and registered land or rights is there a probationary period following first registration or are there perhaps different classes or qualities of title on first registration? Please give details. First registration means the occasion upon which unregistered land or rights are first registered in the registries.
Republic of Kazakhstan legislation doesn’t provide for any probationary period, and there is no difference in rights between the first registered right and subsequent ones.
4.6. On a land sale, when is title (or ownership) transferred to the buyer?
Such transactions are considered as executed from the moment of their registration, and ownership of the land that is the subject of such transaction is transferred to the buyer at the moment of the state registration of its rights in the legal cadaster.
4.7. Please briefly describe how some rights obtain priority over other rights. Do earlier rights defeat later rights?
Establishing the priorities among several rights to the same object under the real estate law stem from the following provisions:
- the real estate rights registered in the legal cadastre, which are subject to obligatory state registration, have priority over unregistered; and
- the priority of the previously accrued rights on immovable property is established by the date of occurrence of the right.
5. The Registry / Registries
5.1. How many land registries operate in Kazakhstan? If more than one please specify their differing rules and requirements.
The Republic of Kazakhstan has the legal cadaster, which is a unified state register of registered rights to real estate, including land plots.
Entries in the legal cadaster are completed for all property.
The cadastral number identifies real estate objects.
All records on the state registration of rights to immovable property are recorded by the registration authority in the legal cadaster information system.
The Ministry of Justice of the Republic of Kazakhstan forms the unified information system of the legal cadaster.
5.2. Does the land registry issue a physical title document to the owners of registered real estate?
Yes, the owner is provided with the registration documents of title and other documents confirming the registration object.
The registration authority, after the entry of a record sheet on the registration, creates an inscription on the entitlement of the state registration, and then issues these documents of title to the owner with a mark confirming registration.
In addition, the electronic registration of real property rights is applicable in Kazakhstan.
5.3. Can any transaction relating to registered real estate be completed electronically? What documents need to be provided to the land registry for the registration of ownership right? Can information on ownership of registered real estate be accessed electronically?
It is possible to complete the real estate registration electronically. Such a transaction is conducted after the notary certification of the transaction with the written consent of the owner. In this case, the owner does not get any of the documents, certifying the registration of rights on paper. Notice of the registration by the registration authority is sent via a single notary information system, and, if available, to the e-mail addresses of the participants in the transaction. The registering authority then sends an electronic copy of the title document, certified by the electronic digital signature of a notary, via the integrated notary information system to the information system of the legal cadaster.
However, as a rule, owners prefer to register the rights in the usual manner. In this case, the owner of the right of property registration must submit to the registering body the following documents:
- application for state registration based on the state form;
- title documents proving the object of the registration, contracts, court decisions, legal acts of executive bodies, certificate of inheritance, the transfer act or separation balance sheet for the reorganisation of non-governmental legal entities, and ownership of a land plot by right of ownership or by bought right interim paid land-use (rent);
- identification documents for a land plot: the act on the right of private property on land; the act on the right of permanent use of land; the act on the right of interim paid land-use (lease); and the act on the right of interim unpaid land-use;
- copy of the document certifying a representative identity; and
- a document confirming the payment of the state fee for registration of rights to immovable property.
Legal persons should additionally submit the founding documents and meeting minutes (extracts therefrom) of the founders (participants, Board of Directors, Board of shareholders) on the acquisition or alienation of real estate objects.
Foreign legal entities must submit a legalised extract from the trade register or another legalised document confirming that the foreign legal entity is a legal entity under the laws of a foreign state, with a notarised translation into the Kazakh and Russian languages.
The listed documents are not required for the electronic registration of rights to immovable property.
As from May 2010, in all regional centres of the Republic of Kazakhstan territorial bodies of justice, through the population service centre, as well as through the web-portal of “electronic government”, the information on registered rights (charges) to immovable property and its technical characteristics and certificates on the absence (presence) of immovable property are issued only in electronic form, containing a certified electronic digital signature of the registering body. This electronic document is legally equivalent to the paper form. This public service is provided free of charge.
5.4. Can compensation be claimed from the registry/registries if it/they makes a mistake?
If, because of an error made by the registration authority upon registration, a person has suffered the damage, this person is entitled to claim compensation from the registering body in court.
5.5. Are there restrictions on public access to the register? Can a buyer obtain all the information he might reasonably need regarding encumbrances and other rights affecting real estate?
There are no restrictions. The buyer has free access to the full information about encumbrances and other rights affecting the purchased real estate.
6. Real Estate Market
6.1. Which parties (in addition to the buyer and seller and the buyer's finance provider) would normally be involved in a real estate transaction in Kazakhstan? Please briefly describe their roles and/or duties.
Real estate agents (realtors) and Lawyers
These categories are a self-regulated. There is no any binding state regulation.
Agents help to find a proper market proposal for buyers and sellers, connect them and get paid commission.
Lawyers conduct the deal and real-estate due diligence, prepare the deal documents, and represent the parties, etc.
In some cases, it is obligatory for the parties to sign a real-estate transfer with a notary present. Notaries should notarise the parties’ signatures, check the deal documents, check the registered restrictions on the real estate, and make sure that the transaction is legally clear.
The registration authorities register the transaction. They hold the legal cadaster and make sure that the transaction is legally clear.
6.2. How and on what basis are these persons remunerated?
The real-estate agents’ commission is approximately 3% for non-residential objects and 1% for residential.
Lawyers work based on hourly and fixed fees.
Notaries and registration authorities have their own state-approved fees, which depend on the action.
6.3. Are there signs of recovery to the real estate market in Kazakhstan following the recent global economic downturn? How important a role has foreign investment played in any such recovery? What were the most significant real estate transactions in Kazakhstan in the past year? Please include all types of investors in your answer.
The recovery of the real estate market in Kazakhstan started in 2011. The Government of Republic of Kazakhstan started to execute several programmes for residential, infrastructure and industrial construction throughout Kazakhstan.
Private investors who had decided to freeze projects during the crisis (for offices, shopping malls, residential, etc.) have started to build new ones.
The road for foreign investors is open. Many international agreements have been signed by Kazakhstan for foreign investment protection and double taxation avoidance.
Regarding the significant transactions, in Kazakhstan, it is a standard practice that parties do not wish to disclose deal terms.
6.4. Is there an increased trend towards investment in and redevelopment/ regeneration of student accommodation in Kazakhstan?
There is no such specific trend in Kazakhstan.
6.5. Has the real estate market in Kazakhstan seen an increase in renewable energy transactions during recent years? What are the principal real estate issues a buyer or investor should consider when entering into such transactions?
We have not seen any increase in such transactions. However, we have seen an increase of the construction of new renewable energy objects in Kazakhstan.
7. Liabilities of Buyers and Sellers in Real Estate Transactions
7.1. What (if any) are the minimum formalities for the sale and purchase of real estate?
Property transactions are made in a simple written form and are subject to obligatory state registration. In accordance with the Civil Code, the transaction is subject to mandatory state or other registration and is deemed to be executed as from the date of registration.
The notary certification of such transactions are not required, however, as a rule, the parties often decide to use the services of a notary, because it simplifies the procedure of registration of ownership (based on a deal); for registration with the registering authority, this may apply only to the buyer. If a deal is not notarised, the registration authority should check all participants in the transaction, because the registering body is obliged to check the authenticity of the signature of the perpetrators of the deal (their authorised representatives), their capacity (legal capacity), as well as their compliance with the will of giving consent.
7.2. Is the seller under a duty of disclosure? What matters must be disclosed?
The seller must give the buyer complete information regarding the subject of the transaction and his rights to it. As confirmation, it must submit the original of the title documents (i.e. the contract of sale and purchase, exchange, gift agreement, privatisation, certificate of inheritance, etc.), which must be registered at the registration authority, the technical certificate for the premises, and the identification documents to the land plot.
When there are encumbrances on the property (i.e. debts on municipal payments, pledge, lease, easements, etc.), the seller must inform the buyer.
The seller should inform the buyer about the condition of the property and report of all the known gaps (defects).
7.3. Can the seller be liable to the buyer for misrepresentation?
The seller bears responsibility before the buyer for providing false information. For example, in case of a failure to notify the buyer about the known gaps (defects) of the property or of the detection of latent defects, the purchaser, by its choice, has the right to demand for their removal, for the proportionate reduction of the purchase price or for a cancellation of the contract and a refund the amount paid. The purchaser can make claims for defects to the residential real estate within two years from the date of the transmission.
In addition, the buyer has the right to demand for the invalidation of the transaction if it is made under the influence of fraud. In this case, each party shall return to the other everything received under the transaction, i.e. restitution.
7.4. Do sellers usually give contractual warranties to the buyer? What would be the scope of these? What is the function of warranties (e.g. to apportion risk, to give information)? Are warranties a substitute for the buyer carrying out his own diligence?
Although it is not common practice, the buyer may ask the seller about guarantees for the execution of the contract. The presence of such guarantees generates the contractual rights and obligations, but is not an absolute right to ownership of real estate (property law - rights in rem). However, the existence of such sellers’ warranties doesn't have to mean that the buyer should forego carrying out his own diligence.
The seller can guarantee the right of ownership at the expense of the proper execution of the procedure to transfer the title on the property on behalf of the seller, and can include in the text of the sale purchase contract the relevant special section of providing such guarantees of property rights.
In addition, the parties may conclude a preliminary contract in writing. It may specify the conditions, establishing the subject matter and other essential terms of the basic contract (price and other). In the preliminary contract, the period in which the parties undertake to conclude the principal contract must be specified. In cases where a party evades from the conclusion of the contract, it is obliged to compensate the other party for losses caused by this.
7.5. Does the seller warrant its ownership in any way? Please give details.
See the answer to question 7.4 above.
7.6. What (if any) are the liabilities of the buyer (in addition to paying the sale price)?
The liabilities of the buyer could include the performance of any other obligations agreed by the contracting parties that are a constituent part of the sale purchase contract.
8. Finance and Banking
8.1. Please briefly describe any regulations concerning the lending of money to finance real estate. Are the rules different as between resident and non-resident persons and/or between individual persons and corporate entities?
In Kazakhstan there are several special Laws:
- The Law of the Republic of Kazakhstan dated December 23, 1995 “On mortgages” regulates the relations arising from the use of mortgage property as a way of securing obligations.
- General rules on pledge also exist in the Civil Code of the Republic of Kazakhstan.
- The Law of the Republic of Kazakhstan dated July 6, 2004 “On credit bureaus and formation of credit histories in the Republic of Kazakhstan”.
There is no any difference in lending for construction and/or the acquisition of real estate for residents and non-residents, or for individuals and legal entities in Kazakhstan.
8.2. What are the main methods by which a real estate lender seeks to protect itself from default by the borrower?
Protection can be sought via the insurance of mortgage loans through liability insurance of the borrower and through insurance against financial risk of the lender.
Through credit bureaus, the lender has all the necessary tools to quickly and accurately analyse the borrower. The lender also has the ability to track the financial behaviour of the borrower almost in real time and take preventive measures to avoid the default of the borrower.
8.3. What are the common proceedings for realisation of mortgaged properties? Are there any options for a mortgagee to realise a mortgaged property without involving court proceedings or the contribution of the mortgagor?
The common proceedings are:
Mortgage under a judicial procedure. The marshal of the court shall perform the sale of the pledged property by sale at public auction based on a court decision.
Mortgage under an extrajudicial procedure, if it is stipulated in the agreement, or subsequent agreement of the parties. A Trustee, who is a legal person or citizen with power of attorney of the pledgee, may proceed with the sale of the pledged property.
Appropriation by the creditor of the ownership of the pledged property is possible in case of the announcement of the auction being abandoned.
8.4. What minimum formalities are required for real estate lending?
Such requirements are set by the banks independently (via the rules on the internal credit policy) based on the financial condition of the borrower and existing risks.
The most common requirements are: availability of collateral (pledged assets); a minimum income (profit) from the main business; constant cash and cash history; a clear and realistic business plan and a reliable credit history on previous loans.
8.5. How is a real estate lender protected from claims against the borrower or the real estate asset by other creditors?
The most reliable way to ensure the loan is through a pledge. A secured creditor, in the case of non-performance by the borrower of the obligation to repay a loan, may satisfy his claim from the value of the pledged property before other creditors of the debtor.
Due to the fact that the security of real estate is subject to obligatory state registration, the borrower shall not be entitled to dispose of the real estate without the removal of such encumbrances. That is, a guarantee from the debtor will remain with the property, which may be foreclosed. The debtor's other creditors can claim against the pledged property only after the secured debt has been cleared (though there are exceptions).
9.1. Are transfers of real estate subject to a transfer tax? How much? Who is liable?
There is no transfer tax for the transfer of real estate in Kazakhstan.
9.2. When is the transfer tax paid?
There is no transfer tax for the transfer of real estate in Kazakhstan.
9.3. Are transfers of real estate by individuals subject to income tax?
For residential real estate – only if such individual becomes an owner less than one year before the deal.
For commercial real estate – yes.
9.4. Are transfers of real estate subject to VAT? How much? Who is liable? Are there any exemptions?
Yes. VAT in Kazakhstan is 12%. The buyer should pay VAT to the seller if the seller is registered as a VAT taxpayer and to the state if the seller is not registered as a VAT payer.
9.5. What other tax or taxes (if any) are payable by the seller on the disposal of a property?
In Kazakhstan there are no other taxes payable on the disposal of a real estate property.
9.6. Is taxation different if ownership of a company (or other entity) owning real estate is transferred?
For commercial real estate, there is no any difference.
10. Leases of Business Premises
10.1. Please briefly describe the main laws that regulate leases of business premises.
- Civil Code (Special Part) dated July 01, 1999.
- Land Code of the Republic of Kazakhstan dated June 20, 2003, num.442-II.
- Law “On state registration of rights to real-estate” dated July 26, 2007, num.310-III.
10.2. What types of business lease exist?
In our legislation we have the following types of real estate lease:
- general lease;
- enterprise lease; and
- lease of a building or structure.
10.3. What are the typical provisions for leases of business premises in Kazakhstan regarding: (a) length of term; (b) rent increases; (c) tenant's right to sell or sub-lease; (d) insurance; (e) (i) change of control of the tenant; and (ii) transfer of lease as a result of a corporate restructuring (e.g. merger); and (f) repairs?
There are the following typical provisions for leases of business premises in Kazakhstan:
(a) Length of tem
A property lease contract shall be concluded for a period of time specified by the contract. If the property lease contract entered into does not have specified a deadline, it is concluded for an indefinite period.
Each party shall be entitled to cancel the agreement at any time by notifying the other party within three months of hiring the real property, unless the legislative acts or the contract provides otherwise.
The lease agreement must be registered with the authorities if its duration is more than 12 months.
(b) Rent increases
The payment for use of the property can be changed only once a year, unless otherwise provided by agreement of the parties.
The payment amount can be revised at the request of one of the parties in the cases of changes to prices and tariffs, which are set centrally.
(c) Tenant’s right to sell or sub-lease
The tenant may, with the consent of the landlord, sublet the rented property (sublease), transfer his rights and obligations under the contract of property lease to another person (transfer of lease), provide the rented property for free usage, and give these rights to pledge as a contribution to the registered capital of enterprise partnerships, joint-stock companies or as a contribution in the industrial cooperative. In these cases, except for a sublease, the responsibility under the contract before the landlord remains with the tenant.
A contract for the transfer of property to other persons cannot be concluded for a period exceeding the period of the main lease contract.
The rules of the property lease contract shall be applied to the sublease contract.
Unless otherwise specified by the lease contract, the early termination of the lease contract shall result in the termination of the sublease contract, which is concluded in accordance with the lease contract.
If the lease contract shall be found to be invalid on these grounds, then the sublease contract shall be invalid too.
Parties can use a deposit in the amount of 2-3 monthly rent payments as a guarantee for the default to pay future payments. Usually this deposit should be paid prior to the signing of the premises acceptance act;
(e) (i) Change of control of the tenant
This depends on the lease agreement terms.
(e) (ii) Transfer of a lease as a result of a corporate restructuring (e.g. merger)
This depends on the lease agreement terms and the registered corporate structure.
Routine (operative) repairs are usually done by the tenant; capital (major) repairs are carried out by the landlord. All separable improvements remain in the tenant’s domain; non-separable improvements are the landlord’s concern.
10.4. What taxes are payable on rent either by the landlord or tenant of a business lease?
Rent is the income for the landlord and an expense for the tenant. The amount will affect the taxable income for corporate income tax calculation for both parties.
No other taxes should be paid.
10.5. In what circumstances are business leases usually terminated (e.g. at expiry, on default, by either party etc.)? Are there any special provisions allowing a tenant to extend or renew the lease or for either party to be compensated by the other for any reason on termination?
On the landlord’s demand, the lease may be terminated in the following cases:
- if a tenant uses the property in substantial violation of the terms of the contract or purpose of the property;
- if the tenant intentionally or negligently substantially worsens the property;
- if the tenant does not make timely payment for the use of property more than twice; and/or
- if the tenant does not carry out a major repair of the property within the established lease terms.
The landlord may demand early termination of the lease only after the tenant has been given the possibility to fulfil its obligations within a reasonable time.
The lease may be prematurely terminated at the request of the tenant in the following cases:
- the landlord does not provide the property for the use of the tenant or creates obstacles resulting in the impossibility of the rightful use;
- the landlord has not carried out, in the specified period, or, in the absence of such time period in the lease, within a reasonable time, the duty bestowed upon him with regards to the overhaul of the property;
- the property has defects hindering its use that were not pointed out by the landlord at the conclusion of the lease, and were not previously known by the tenant;
- if the property, by virtue of circumstances for which the tenant is not liable, is in a state unsuitable for use.
The lease loses its validity when it expires.
The tenant shall have a preferential right before other tenants for an extension of the lease of the premises.
Other conditions that allow (i) the tenant to extend or renew the lease, (ii) any of the parties to obtain compensation for any reason, or (iii) the termination of the lease, may be established by the parties mutually.
10.6. Does the landlord and/or the tenant of a business lease cease to be liable for their respective obligations under the lease once they have sold their interest? Can they be responsible after the sale in respect of pre-sale non compliance?
This depends on lease agreement terms.
10.7. Green leases seek to impose obligations on landlords and tenants designed to promote greater sustainable use of buildings and in the reduction of the "environmental footprint" of a building. Please briefly describe any "green obligations" commonly found in leases stating whether these are clearly defined, enforceable legal obligations or something not amounting to enforceable legal obligations (for example aspirational objectives).
There is no such practice in Kazakhstan, except for the issues and property connected to natural resource extraction.
11. Public Law Permits and Obligations
11.1. What are the main laws which govern zoning and related matters concerning the use and occupation of land? Please briefly describe them and include environmental laws.
The basic Laws governing land relations are:
- Land Code of the Republic of Kazakhstan, dated June 20, 2003;
- The Ecological Code of the Republic of Kazakhstan, dated January 09, 2007;
- Forest Code of the Republic of Kazakhstan, dated July 08, 2003;
- Law of the Republic of Kazakhstan “On specially protected natural territories”, dated July 07, 2006;
- The law of the Republic of Kazakhstan “On radiation safety of population”, dated 23 April 1998; and
- The law of the Republic of Kazakhstan “On subsoil and subsoil use”, dated June 24, 2010.
In the Land Code you can find the concept of zoning; it is defined as the territory of land with the establishment of its purpose and mode of use. Zoning of land is carried out under the decision of local executive bodies and is carried out due to budgetary funds.
The target mode of use of the territory, as defined in the zoning of the land, is mandatory for the subjects of land relations.
The categorisation of land is determined on the basis of its purpose and permitted use in accordance with the zoning of lands.
In Kazakhstan, the following categories of land exist:
- agricultural land;
- human settlements land;
- land for industry, transport, communications, defence and other non-agricultural purposes;
- lands of the specially protected natural territories, lands of health-improving, recreational and historical-cultural purposes;
- the lands of the forest fund;
- lands of the water fund; and
- reserve land.
The Ecological Code provides environmental requirements for the zoning and land use of the above-mentioned categories.
Radiation safety law regulates relations in the sphere of radiation safety of the population, in order to protect their health from harmful effects of ionizing radiation.
Subsoil law regulates relations arising in subsoil use operations, and is based on the following principles:
- to ensure the rational, comprehensive and safe use of subsoil;
- to ensure the protection of subsoil and environmental protection;
- for the openness of conducting subsoil use operations; and
- payment for the subsoil use
11.2. Can the state force land owners to sell land to it? If so please briefly describe including price mechanism.
A land plot can be forcibly sold for state needs in exceptional cases (the list is exhaustive) when it is impossible otherwise to satisfy these needs, under the condition of fair compensation of property with the consent of the owner or by a court decision.
For example, such cases are related to the provision of land for the needs of defence and national security, discovery and development of mineral deposits, and the construction (reconstruction) of roads and railways.
The owner has the right to initiate conciliation, according to the results of a contract for the purchase of a land plot for state needs, which specifies the size, form of payment and terms of reimbursement of the cost of land.
The cost of the withdrawn land (excluding losses) acquired by the owner from the state is determined in the amount paid to the state. The cost of the land plot on which there is an individual residential house is determined by the cost of land and the real property in an amount not exceeding their market cost.
The cost of the land passed to the owner from legal actions or a court decision is determined by the amount of the value specified in the civil law contract or the decision of the court, but not exceeding the market value. If in a civil law contract, the price of the land plot is not specified, the value of the land is determined according to the cadastral (evaluative) cost.
The market value of the land plot or other immovable property alienated in connection with the seizure of land is determined by an independent appraiser. The state has a right not to agree with such valuation.
On agreement with the owner of the land plot, another land plot may be granted with the offset value of the land parcel provided in the price of the land plot on the cadastral (evaluative) cost.
If the owner disagrees with the decision of the state body about the forced alienation of the land plot and (or) in the case of the failure to reach an agreement about the cost of the land plot to be seized and the amount of losses subject to compensation, the local executive authority may apply to the court for forced alienation of the land plot.
11.3. Which bodies control land/building use and/or occupation and environmental regulation? How do buyers obtain reliable information on these matters?
- The Government of the Republic of Kazakhstan.
- Bodies of local self-government (local representative and local executive bodies).
- The Ministry of environmental protection of the Republic of Kazakhstan.
- Specially authorised state bodies in the field of environmental protection, such as the central authorised body for management of land resources, the authorised state body in the field of forestry, the authorised state body in the field of protected areas, etc.
Information on facilities of land or of land with a building situated in it, existing encumbrances and other rights for real estate purchased by the buyer can be obtained from the territorial bodies of justice through the population service centre, as well as through the web-portal of the “electronic government” (www.egov.kz).
11.4. What main permits or licences are required for building works and/or the use of real estate?
For real estate use, it is important to use it in accordance with the real estate category (for the land) and its registered intended use.
It is prohibited to:
- construct an office building on land, the category and target use for which is for residential building construction; and
- open an office in a residential building.
An investor wanting to construct a facility must obtain a decision on granting the respective right to the land from the local executive bodies of districts (cities).
Utility and engineering service providers provide the technical conditions for the connection to the utility and public supply sources in the requested (calculated) parameters required for the construction and sustainable functioning of the agreed operation object.
Local executive bodies, on the basis of the decision to grant the respective land rights, approve the job design, provide technical conditions for the connection to sources of engineering and utility services and other source materials (data), and issue an architectural and design requirement specification to the investor.
Developed in accordance with the design task, the architectural and design requirement specification and other initial materials design (design-budget) documentation must pass the coordination and approval in accordance with the requirements of the state normative documents.
Before the start of construction and assembly work, the investor, not less than ten working days before, shall notify the bodies exercising state architectural-building control about the beginning of construction and installation works in accordance with copies of the positive conclusion of the examination, if it is mandatory to do so and in accordance with the act of selection of the land plot.
The construction process must be accompanied by architectural-building control and supervision.
A completed site is subject to the acceptance procedure.
To carry out any construction or design development works in Kazakhstan, the executor must obtain a licence for construction and assembling works or design development works.
11.5. Are building/use permits and licences commonly obtained in Kazakhstan? Can implied permission be obtained in any way (e.g. by long use)?
Yes, permits and licences should be obtained in Kazakhstan.
It is impossible to obtain implied permission in any way.
11.6. What is the appropriate cost of building/use permits and the time involved in obtaining them?
- real estate category change (for the land) – 30 days;
- registered intended use change – 30 days;
- granting the respective right to the land – from 60 to 120 days;
- getting technical conditions for connection to utility and public supply sources – from 30 to 90 days;
- getting architectural and design requirement specification – 30 days;
- the coordination and approval of the design documentation – from 30 to 90 days;
- obtain a license for construction and assembling works or design development works – 15 days.
The cost stated for the above items may vary and consist of state duties and service providers’ fees.
The time for collecting document packages is excluded from the above terms.
It is important to bear in mind that all state-established periods are subject to suspension by the authorities on a permanent basis. The real time for finalising these issues could be twice the time stated above.
11.7. Are there any regulations on the protection of historic monuments in Kazakhstan? If any, when and how are they likely to affect the transfer of rights in real estate?
The Law “On protection and utilisation of historical and cultural heritage” and the Civil Code regulate the protection of historic monuments in Kazakhstan.
Monuments of history and culture in the Republic of Kazakhstan are subject to mandatory protection and conservation, and have a special legal regime for their use, changes in ownership, and deprivation of their status.
The owner has the right of possession, use and disposal of monuments of history and culture as an object of ownership, except the right to its destruction.
Owners of monuments of history and culture must notify local executive bodies on alleged occurrences of any changes of ownership rights.
In cases when the owner uses wasteful management under the monuments of history and culture that threaten the loss of their significance, such monuments, on the decision of the court, shall be withdrawn from the owner by the state through foreclosure or sold at public auction.
In a public offering of monuments of history and culture, the state has a priority right of purchase under the market (auction) price.
11.8. How can e.g. a potential buyer obtain reliable information on contamination and pollution of real estate? Is there a public register of contaminated land in Kazakhstan?
There is no public register of contaminated land.
Contamination and pollution of real estate should be the part of the approved design project (ecology part). After construction has been finalised, the management company is obligated to conduct a yearly report about the contamination and pollution of the real estate. This work is usually done by private companies (having a special licence for it) based on a commercial agreement.
11.9. In what circumstances (if any) is environmental clean up ever mandatory?
Environmental clean up is mandatory only in cases connected with natural resource extraction.
11.10. Please briefly outline any regulatory requirements for the assessment and management of the energy performance of buildings in Kazakhstan.
Such terms have been determined for:
- Existing buildings.
These issues are managed by state authorities in the frames of special state programmes for the repair of all residential buildings in Kazakhstan. The programme determine the terms for improving the energy efficiency for multi-family residential buildings.
- New buildings based on the new Law “About energy saving and energy efficiency”.
The projects for the construction of objects of consuming energy resources provide for the compulsory use of energy-saving materials, the installation of metering devices of energy resources, and the automated systems of regulation of heat consumption. Multi-apartment houses should envisage the obligatory use of energy-saving materials, installation of house devices that account for thermal energy, door-to-door metering of electricity, cold and hot water, gas, and also of the instruments of the controllers in heating systems, and automatic heat consumption control systems.
The construction of new objects of consuming energy resources, which are not equipped with appropriate devices to account for energy resources and do not have automatic heat consumption control systems, is not allowed.
There are also the following Rules approved by Government in this regard:
- Republic of Kazakhstan Government Resolution, dated September 11, 2012, num.1181 “On establishing the requirements for energy performance of buildings, structures and their elements that are part of walling”; and
- Republic of Kazakhstan Government Resolution, dated September 13, 2012, num.1192 “Requirements for energy conservation and efficiency requirements before design and (or) project (design estimate) buildings documentation, structures”.
12. Climate Change
12.1. Please briefly explain the nature and extent of any regulatory measures for reducing carbon dioxide emissions (including any mandatory emissions trading scheme).
The Republic of Kazakhstan Ecology Code establishes state regulatory items for emissions reduction.
The state regulation of emissions and removals includes:
- distribution of quotas on emissions of greenhouse gas emitters;
- establishment of market mechanisms for reducing emissions and absorption of greenhouse gases; and
- administration of nature users.
Quotas for greenhouse gas emissions for subsoil users operating in the oil and gas, energy, mining, and chemical industries, and in agriculture and transport, need to be obtained where emissions of greenhouse gases exceed the equivalent of twenty thousand tonnes of carbon dioxide per year.
The administration of nature users (hereinafter - the subjects of administration) are legal entities engaged in activities related to greenhouse gases, the volume of which does not exceed the equivalent of twenty thousand tonnes of carbon dioxide per year in the following sectors: oil and gas; energy; mining; chemical; agricultural; transport; and housing and utilities.
12.2. Are there any national greenhouse gas emissions reduction targets?
The national plan on the allocation of quotas for emissions of greenhouse gases was developed by the authorised body in the field of environmental protection and approved by the Government of the Republic of Kazakhstan in the appropriate period.
The permitted amount of greenhouse gas emissions for the Republic of Kazakhstan in accordance with international treaties of the Republic of Kazakhstan in the field of climate change is:
- for the period from 2008 to 2020, the amount of 4,393,281 thousand tonnes of carbon dioxide equivalent;
- for the period from 2008 to 2012, the amount of 1,800,525 thousand tonnes of carbon dioxide equivalent; and
- the period 2013 to 2020, the amount of 2,592,756 thousand tonnes of carbon dioxide equivalent
12.3. Are there any other regulatory measures (not already mentioned) which aim to improve the sustainability of both newly constructed and existing buildings?
No, there are not.
Online version of this research located here: http://www.iclg.co.uk/
Published by Global Legal Group Ltd, London.
Author 1: Andrey Artyushenko
Author 2: Gulnar Ospanova
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