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Kazakhstan (2022)

Kazakhstan Legal Framework and Practices

In Kazakhstan, land is owned by the State but can be transferred, sold or leased to individuals or legal entities. Most leases are on a long-term basis (generally for 49 years). However, a few others prefer to lease only for the short-term (between 1 to 5 years).

 

Hierarchy of Legal Acts in Kazakhstan

Hierarchy of legal acts in the Republic of Kazakhstan corresponds to the following levels:

  • The Constitution of the Republic of Kazakhstan;

  • International treaties ratified by the Parliament;

  • Laws that incorporate changed and additions into the Constitution;

  • Constitutional laws of the Republic of Kazakhstan;

  • Codes of the Republic of Kazakhstan;

  • Consolidated laws, laws of the Republic of Kazakhstan; and

  • Other regulations, normative decrees, and so forth.

 

Overview of applied national legal acts to the Project is provided below.

 

Kazakhstan Constitution

Kazakhstan laws and regulations regarding land and land ownership are derived from the Constitution, which states that land (surface and underground) is owned by the State, but can also be privately-owned (Article 6.3). Article 26.3 also states that no one may be deprived of property unless stipulated by a court decision.

 

The Land Code

The Land Code of the Republic of Kazakhstan (RK Code No. 442-II adopted on 20 June 2003, last amendment dated 07 March 2022) establishes the foundations, conditions and limits for modifying or terminating ownership of land and land-use rights, describes the rights and responsibilities of landowners and land users, and regulates land relations.

Land Code also establishes conditions for granting to citizens and legal entities permanent or temporary use rights to State-owned land (Articles 34 and 35).

 

The Article 44 of the Land Code presents details on provision of land plots for implementation of construction works. In particular, it mentions that when requesting a land plot for the construction of an object, a land plot is pre-selected. The results of the land plot selection for the construction of the facility and, if necessary, for establishing its protective or sanitary protection zone, shall be formalized in an act by the respective authorized body at the location of the land plot. Based on the commission's conclusion, a Land Use Plan is being prepared in order to grant the right to the land. Land Use Plan includes the area of the provided land plot, its borders and location, owners and users of the adjacent land plots, as well as limitations and easements of the provided land plot. In the event of compulsory acquisition of a land plot for state needs, it also includes calculations of losses incurred by the owners and users (leaseholders) of land plots, losses of agricultural and forestry production depending on the type of land acquired.

 

Based on the Land Use Plan, the draft decision of the local executive body on granting the respective right to land is prepared by the authorized body at the location of the land plot. In the case when residential buildings, other buildings and structures are located in the territory chosen for the construction site, as well as utilities and green spaces subject to demolition or transfer (including those that fall during the transfer of land to the sanitary protection zone of industrial enterprises), the applicant or his authorized representative ensures receipt of all agreements required for the allotment of the land plot. In addition, the applicant presents a contract concluded with each of the property owners, including the conditions for compensation of losses to the owner. The contract specifies the conditions and terms for relocation, transfer of existing buildings, engineering communications, green spaces, the developer's obligation to recover all losses associated with the demolition of property.

 

The draft decision of the local executive body on granting the right to the land plot should contain:

  • The name of the legal or natural person to whom the right to land is granted;

  • Purpose of the land plot use;

  • The area of the land plot;

  • Type of right to land, limitations, easements;

  • Acquisition price of a land plot or land use right in the event of the provision of a plot for a fee, the terms and conditions for the conclusion of contracts for the sale of a land plot;

  • Surname and name of an individual or the name of the legal entity is made, indicating size of the plot(s);

  • Information on the whether the land plot can be divided or not;

  • Other conditions.

 

Chapter 9 of the Land Code addresses the issues related to termination of ownership, use and other rights for the land plot.

 

In particular, the Article 81 of the Land Code provides grounds for terminating the right of private ownership of a land plot or land use rights and includes the following conditions for termination:

  • Alienation of the land plot by the owner or the land use right by the land user to other persons;

  • Owner's refusal of the right of ownership or land user from the right of land use;

  • Loss of ownership of land or land use rights in other cases envisaged by the legal acts of RoK.

Acquisition of the land plot from the owner and land use right from the land user without their consent is not allowed, except in the following cases:

  • Foreclosure on a land plot or land use right for the obligations of the owner or land user;

  • Compulsory acquisition of a land plot for state needs;

  • Compulsory withdrawal from the owner or land user of a land plot not used for its intended use or used in violation of RoK legislation;

  • Compulsory acquisition from the owner or land user of a land plot subjected to radioactive contamination, with the provision of an equivalent land plot;

  • Confiscation.

  • In addition, the right to land use may be terminated on the following grounds:

  • Expiration of the period for which the plot was provided;

  • Early termination of the lease contract for a land plot or a contract for temporary unpaid land use, except for cases when the land plot is pledged;

  • Termination of labor relations, in connection with which the service land plot was provided to the land user.

 

The Land Code provides for base rates of payment for the land plots and the cadastral value of land in order to determine the cost of the land. Basic rates of payment for the land plots when they are transferred to private property in the capital are established by joint decisions of the representative and executive bodies of the capital, depending on local conditions and peculiarities. The rates of payment for land use shall not be established at a level below the land tax rates.

 

Payment for selling the right to lease is differentiated from the cadastral (estimated) cost of a particular plot of land. Base rate of payment for land plots is calculated in accordance with the Decree of the Government of the Republic of Kazakhstan from September 2, 2003 № 890 "On Establishment of Base Rates for the Land Plots”. However, according to the latest amendments of the abovementioned decree (The Decree of the Government of the Republic of Kazakhstan from October 10, 2011 № 11545), local government bodies of the capital, depending on local conditions and peculiarities must develop and approve the base rates for the land plots, except for lands used for agricultural purposes.

 

Cadastral (estimated) cost of a land plot is determined by specialized state-owned enterprises responsible for operation of the state land cadastre, in accordance with the base rates of payment for land plots transferred to private property, with application of corrective (increasing or decreasing) coefficients to account for inflation, land conditions and location.

 

According to Article 166 part 2 of Land Code, in determining the amount of compensation, following shall be included: (a) the cost of land or land-use rights; (b) the market cost of the assets located on the plot, including fruit trees and perennial plantings; (c) cost of the expenditures associated with development of the land, its operation, implementation of protective measures, improvement of soil fertility taking into consideration their inflation; (d) all losses inflicted on the owner or land user as a result of land acquisition at the time of termination of ownership or land-use right, including losses they incur due to early termination of their obligations to third parties; and (e) loss of revenue

 

The amount of compensation is established based on the agreement among the parties (Article166.3). In case of disagreement, the land cannot be taken until the court adjudicates a settlement (Article 166.7).

 

The Land Code does not entitle encroachers to compensation for the right to use the lands they use informally or those who have not registered their claims to lands.

 

Labor Code

According to the Labor Code (№ 414-V, adopted on 23 November 2015, last amendment dated 30 December 2021), registered employees of enterprises / institutions who are losing their jobs as a result of termination of employment agreement by the employer in the event of termination of the employer’s activities are entitled to compensation in the amount of average salary for one month (Article 131).

 

Legal requirements applicable to CHP-2 SPZ

Regulation on SPZs are provided by the several RoK legal acts, which impose restrictions on the use of the territory within the SPZ boundaries.

 

The Paragraph 2, Article 58 of the Law of the Republic of Kazakhstan No. 242 of July 16, 2001 “On the architectural, urban planning and construction activities in the Republic of Kazakhstan” as amended of December 27, 2021 states the following:

In the sanitary protection zone, regardless of its parameters and affiliation, the location (construction) of residential buildings, educational organizations, health and recreation institutions, sports and recreation facilities, including the location of gardening land plots, as well as the production of agricultural products is prohibited.

 

Establishment of the SPZ is regulated by the Sanitary Rules "Sanitary and epidemiological requirements for sanitary protection zones of objects that are sources of impact on the environment and human health", approved by the Order of the Acting Minister of Health of the Republic of Kazakhstan dated January 11, 2022 No. KR DSM-2. Under the Sanitary Rules there are several limitation for the use of territory within the SPZ borders, which include limitation on the location of residential buildings:

1.      Sanitary rules provide for definition of the SPZ as follows (Paragraph 5):

Sanitary protection zone is the territory separating special purpose zones, as well as industrial organizations and other industrial, communal and warehouse facilities in a locality from nearby residential territories, buildings and structures of residential and civil purpose in order to mitigate the impact of adverse factors on them.

2.      Paragraph 12 of the Rules states that:

Facilities that are sources of impact on the environment and human health are separated by SPZ from the territory of residential development, landscape and recreational areas, recreation areas (zones), territories of resorts, sanatoriums, rest homes, stationary medical and preventive organizations, territories of horticultural associations and cottage development, collective or individual dachas and gardening plots.

3.      Paragraph 48 states:

Within the boundaries of SPZ of facilities (including the territory of the object from which the SPZ is established), buildings and structures can be placed to serve the employees of the facility and to ensure its activities specified in paragraph 47 of these Sanitary Rules, with the exception of:

1)  newly constructed residential buildings, including individual residential buildings;…

3) created and organized territories of gardeners partnerships and cottage development, collective or individual dachas and gardening plots;…

5) facilities for the cultivation of agricultural crops used as food.

 

4.      Paragraph 53 also states:

The SPZ or any part of it is not used as a reserve territory of the object for the expansion of the residential area, the location of collective or individual suburban and horticultural plots.

Summarizing provisions of national laws, listed above, no residential buildings shall be located within the CHP-2 SPZ.

 

Paragraph 6, Article 44 of the Land Code of the Republic of Kazakhstan No. 442 dated June 20, 2003 as amended on January 1, 2022 states the following:

In the event that residential buildings, other buildings and structures, as well as engineering communications and green spaces are located on the territory selected for the placement of the construction facility, which are subject to demolition or transfer (including those that fall into the SPZ of industrial enterprises during the allocation of land), the applicant or his proxy provides the approval required for the land allocation by itself.

This provision oblige JSC “AlES” to conduct relocation of residents located within the CHP-2 SPZ by itself.

 

Law of the Republic of Kazakhstan No. 242 of July 16, 2001 “On the architectural, urban planning and construction activities in the Republic of Kazakhstan” as amended of December 27, 2021

Sanitary protection zone - the territory separating special purpose zones, as well as industrial enterprises and other industrial, communal and warehouse facilities in a locality from nearby residential territories, buildings and structures of residential and civil purpose in order to mitigate the impact of adverse factors on them (Article 1).

In the sanitary protection zone, regardless of its parameters and affiliation, it is not allowed to place (construct) residential buildings, educational organizations, health and recreation institutions, sports and recreation facilities, including the placement of horticultural and horticultural land plots, as well as the production of agricultural products (Article 58).

The Paragraph 2, Article 58 states that in the sanitary protection zone, regardless of its parameters and affiliation, the location (construction) of residential buildings, educational organizations, health and recreation institutions, sports and recreation facilities, including the location of gardening land plots, as well as the production of agricultural products is prohibited.

 

Law on State Administration and Local Self-Government

The Law of the Republic of Kazakhstan on State Administration and Local Self-Government (№ 148-II adopted on 23 January 2001, last amendment dated 2 March 2022) in it Article 31 specifying the competences of the regional Akimat stated that rayon Akimat shall among other functions:

  • Facilitates the implementation by citizens and organizations of the norms of the RoK Constitution, laws, acts of the President and the Government of the Republic of Kazakhstan, normative legal acts of central and local state bodies;

  • Regulates land relations in accordance with the land legislation of RoK;

  • Organizes the construction, operation and maintenance of roads of the regional importance.

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