A number of significant legislative amendments will be introduced with effect from January 1, 20221, to align land relations and, in part, some construction issues. Some of the innovations highlighted below may be of interest to companies from a wide range of industries. In our view, the amendments as a whole will strengthen the legal status and available remedies of landowners and land users in their relations with the state authorities.
1. The territorial divisions of the authorized body (currently the Ministry of Agriculture) will take over a number of land-related powers from local executive bodies (akimats) of various levels and will also be granted new powers. In particular, the ministry’s structural units will supervise at local levels the use and protection of land and the maintenance of the state land cadastre. They will also be empowered to issue binding prescriptions to eliminate violations of the land legislation, send prescriptions to a registering authority to impose encumbrance over the rights to a land plot (to the extent the land is not used as per its designation or is used in violation of the law), or file an action before courts for the above violations.
The ministry’s territorial divisions will also take over from the akimats a number of business-sensitive powers and authorities that were previously provided for in the law. The territorial divisions will have the right to suspend construction, development of mineral deposits, operation of facilities, exploration or other operations if the same is carried out in violation of the land laws of Kazakhstan or the prescribed land use regime, or if such operations are carried out under projects that have not passed the expert examination or have got an adverse expert opinion.
2. An obligation will be imposed on the local executive bodies to post particulars of vacant land plots and scheduled trades (auctions) on the website of the state property register, their own internet resources and on designated information stands in places accessible to the public, with quarterly updates.
We believe that this development will contribute to the greater openness of the state authorities and ensure access to information for persons willing to exercise their right to purchase a land plot.
3. On the protocol resolution of the land commission granting (refusing to grant) a land plot (the “Protocol Resolution”):
- more details are given on the procedure for its delivery to an applicant (i.e. any of the individuals or legal entities who filed an application with the akimat): this can be by hand delivery, by a registered letter with delivery notification, in the form of an electronic document endorsed by an electronic digital signature or via the applicant's e-mail;
- the mechanism can be appealed, in court within seven business days of the receipt of the Protocol Resolution, by an applicant in a manner prescribed by the Administrative Procedure Code of the Republic of Kazakhstan;
- the obligation is imposed on the working body of the land commission to post Protocol Resolutions on the internet resources of the authorized bodies on a monthly basis, and this will apply to both the land plots for the construction of facilities and those not related to construction.
These amendments will allow applicants to use, to the maximum extent, their right to appeal against illegal actions of land commissions as a separate remedy, in addition to the possibility of directly appealing decisions of the akimats (at a later stage of reviewing an application for the land rights).
4. The obligation is envisaged to post reports on trading (bidding, auction) results in respect of the sale of land plots or the granting of the lease rights on the internet resources of the authorized body.
5. It is determined that civil transactions executed by individuals and/or legal entities in violation of the Land Code are invalid. This amendment does not define such transactions. However, we understand that it refers to transactions with land plots that may not be owned by certain categories of persons for whom the obligation to sell is provided, such as transactions on the purchase of agricultural lands, if there are foreign participants in the Kazakhstan legal entity.
The amendments do not explicitly provide whether such transactions are voidable (i.e., a court decision is required to invalidate a transaction), or void ab initio (i.e. automatically invalid from the outset due to the grounds expressly provided for by the law). As the amendments do not expressly define that any of the transactions referred to above are void ‘ab initio’ due to the violation of the Land Code, then by virtue of the general provisions of the Civil Code such transactions should be categorized as voidable.
6. Regarding land plots that are not used as per their designation and not developed, which may be withdrawn from an owner or land user (e.g., a land plot intended for construction may be withdrawn if it is not used for its intended purpose for three years from the date of taking a decision to grant such land plot), a more precise definition is given to periods of time that should not be included when calculating the period of non-use.
In particular, the calculation should not include the time during which:
- there was no town planning documentation (master plans, detailed planning and development projects, projects of land and economic arrangement of territories) approved in an established manner, or there was no ability to connect to engineering utilities;
- a land plot could not be used as per its designation due to force majeure or other circumstances precluding such use. It is currently provided that only the force majeure circumstances should not be taken into account when calculating the total period during which the land plot was not used as per its designation.
7. The “other circumstances precluding the intended use of land plots” include:
- modification of the town planning documentation (master plans, detailed planning and development projects, projects of land and economic arrangement of territories) approved in an established manner;
- failure to act of the local executive body officials responsible for the architecture and urban planning issues when reviewing applications submitted by landowners or users for architectural and planning assignments, or officials of natural monopolies when reviewing applications for granting technical specifications to connect to engineering utilities or other conciliation procedures envisaged in respect of the construction of facilities (if such a failure to act is proven in court).
This innovation in our view is very important and is designed to facilitate the proof in court by bona fide landowners and/or users of the impossibility of developing land plots within the time limits established for them.
- The Law of the Republic of Kazakhstan dated 30 June 2021 “On Amendments to Certain Legislative Acts of the Republic of Kazakhstan Regarding the Development of Land Relations”.