LAND AND OTHER IMMOVABLE PROPERTY
Land plots
The primary legislative act regulating all land-related matters is the Land Code of the Republic of Kazakhstan of 20 June 2003 (the “Land Code”).
Land in the Republic of Kazakhstan may be held in government and private ownership. All land not in private ownership is deemed to be the property of the government whose rights are exercised by competent authorities within the scope of their respective powers.
The land use right may be permanent or temporary, alienable and inalienable, and acquired on a free or paid basis.
Kazakhstan law subdivides land users into the following categories:
1) government (public) and non-government (private);
2) national and foreign;
3) private and corporate;
4) permanent and temporary; and
5) primary and secondary.
Land ownership rights and land use rights may be acquired through:
1) granting by the government;
2) transfer in civil transactions; and
3) transfer by universal succession (inheritance/succession, reorganization of a legal entity).
Citizens of the Republic of Kazakhstan may have in private ownership land plots designated for running peasant or farm households, private subsidiary holdings, forestry, gardening, private housing construction and summer cottage (dacha) construction, as well as land plots allocated/offered for the development of industrial and civil, including residential, buildings (constructions/structures) and related complexes, or built-up lands, including the lands designated for maintenance of buildings (constructions/structures) in accordance with their designation. When an individual owner of a land plot allocated for peasant/farm/private holding, forestry, gardening or summer cottage (dacha) construction renunciates Kazakhstan citizenship, such land plot must be either disposed of or transferred to another party.
The government may transfer title to a land plot in favour of a private owner, for consideration, subject to the appropriate resolution adopted by local authorities on the level of oblast, republican-status city, capital city, region, oblast-status city, akim of a region-status city, town, village or rural area within the scope of their authority, unless such land plot is granted free of charge to any of the listed persons under the Kazakhstan Land Code.
Privately owned legal entities of the Republic of Kazakhstan may have in private ownership land plots designated/offered for agricultural commercial production, forestry, development of industrial and civil, including residential, buildings (constructions/structures) and related complexes, or built-up lands, including the lands designated for maintenance of buildings (constructions/structures) in accordance with their designation.
Foreign nationals, stateless persons and foreign (privately owned) legal entities may own land plots allocated for construction of industrial and non-industrial (including residential) buildings, facilities and structures (or complexes thereof) and for development of built-up areas, including land plots intended for the maintenance of buildings/facilities/structures in accordance with their designation.
The right of permanent land use is granted to the following government-owned land users:
1) legal entities engaged in agricultural and forestry production, as well as research, testing and education;
2) legal entities using lands of specially protected natural sites; and
3) any other land users as provided by Kazakhstan legislation.
Permanent land use rights may not be granted to foreign land users.
Kazakhstan citizens and non-government incorporated entities, as well as international organisations, may be granted a temporary fee-based land use/lease right (either short-term or long-term) for a period of up to 49 years.
Kazakhstan citizens may be granted a temporary fee-based land use/lease right for peasant of farm holding for a period of 10 to 49 years, while qandases (returnees) may be granted such right for a period of up to 25 years.
Kazakhstan non-government incorporated entities may be granted a temporary fee-based land use/lease right for agricultural production for a period of up to 49 years.
The right to use a land allotment for extraction of mineral resources and other subsoil use and prospecting operations is normally granted for the validity period of the respective license or contract.
Kazakhstan citizens and legal entities may be granted a temporary land use right free of charge for a period of up to 5 years.
By Decree No. 248 of 6 May 2016 the Kazakhstan President imposed moratorium on agricultural land lease to foreign nationals, stateless persons, foreign entities or legal entities in the authorised capital of which at least fifty percent interest belongs to foreign nationals, stateless persons or foreign entities until 31 December 2021.
A land use right may be transferred or assigned only by those persons who have acquired the right of temporary land use/lease for a fee, unless otherwise provided for by Kazakhstan law.
A land plot which is owned or used under the right of ownership or use may be pledged as collateral.
Long-term land tenure in the form of lease is permitted for the term of the relevant lease agreement. Short-term land tenure (either on a free or on a paid basis) may not be pledged.
Private land ownership or land tenure terminates when:
1) the land plot is alienated;
2) the ownership or tenure rights are waived by the land owner/user; or
3) the ownership or tenure rights are lost for reasons provided for by Kazakhstan law.
A land plot or land tenure may not be confiscated without consent of the land plot owner/user unless:
1) the land plot or land tenure is foreclosed on in discharge of the owner’s/user’s liabilities;
2) the land plot is requisitioned for state needs;
3) the land plot is withdrawn, in the manner prescribed by Kazakhstan law, when it is not used by the owner/user in accordance with its designated purpose or is used in violation of Kazakhstan law;
4) the land plot is requisitioned for the reason of its radioactive pollution, provided that its owner/user is granted a land plot of equal value; and
5) the land plot is confiscated.
Moreover, land tenure may be terminated on the following grounds:
1) expiration of the term for which the land plot was granted;
2) early termination of the agreement for lease of the land plot or the agreement for temporary land use on a free basis, save for when the land plot is held in pledge; and
3) termination of the labour relations in relation to which the land user was granted a service allotment.
Residential Property
Citizens or legal entities may privately own any residential property regardless of its location in the Republic of Kazakhstan, unless otherwise provided for by Kazakhstan law. There are no restrictions as to the number and size of residential property owned by one citizen or legal entity.
The right to own residential property, either in part or in whole, arises from the following grounds:
1) construction of a house (or part thereof);
2) consummation of transactions for sale and purchase, exchange, gift or disposal subject to life-time support and other civil transactions not contradicting the applicable laws;
3) acquisition of a residential property through inheritance or universal succession;
4) acquisition of ownership by the lessee of housing or residential property/apartment occupied by such lessee in state-owned residential properties through its privatization (purchase or gratuitous transfer). The privatized residential property will pass to the joint and common ownership of the lessee and all family members permanently residing with him/her, including those who are temporarily away, unless otherwise provided for by an agreement between them;
5) acceptance by a member of a housing construction cooperative of an apartment in a multi-apartment residential building subject to the respective deed of transfer under an agreement on share participation in housing construction;
6) transfer of a residential property to ownership under a contractual obligation, including an agreement for the citizen's contribution to the construction of the building in the form of his/her labour or funds;
7) transfer of a residential property by privately-owned legal entities to the ownership of their employees or other persons by sale or gratuitous transfer;
8) transfer of a residential property by the State or a State-owned legal entity to the ownership of their employees or other persons on the conditions determined by Kazakhstan law;
9) transfer of a residential property as compensation for a lost privately owned residential property as a result of its demolition or requisition or when such residential property becomes uninhabitable as a result of a natural calamity or emergency of natural or anthropogenic nature occurring in Kazakhstan. When a residential building is demolished because of the land expropriation for state needs, the owner of such property shall, at the owner’s sole discretion and prior to the building demolition, be either granted another decent property or paid a compensation equivalent to the market value of the demolished property. When the value of the provided property is higher than the value of the demolished property, the difference is not taken from the owner. If the value of the demolished property is higher than the value of the provided property, the difference is paid to the owner; and
10) other grounds not prohibited by Kazakhstan law.
The owner of a residential property or unfinished residential building may freely, at their own discretion but considering the specifics of Kazakhstan law, sell on their own terms, transfer by gift, exchange or testate to other persons, pledge, or otherwise dispose of the same in the manner not prohibited by Kazakhstan law.
Use of a residential property by its owner for nonresidential purposes does not require a permit from government authorities, but obligates the owner to comply with construction, sanitary, fire protection and other binding rules and regulations.
A landlord or a person authorised by the landlord to lease an accommodation must arrange for the registration of their tenants in the manner prescribed by Kazakhstan law.
The right to own a residential property terminates in the event of disposal of such property by the owner to another person, the owner's death or in the event of demolition (loss) of the property, and in other events provided for by the Civil Code of the Republic of Kazakhstan.
Forced (beyond the owner’s volition) termination of the right to own a residential property is permitted in the following events:
1) foreclosure on the residential property together with the land plot in discharge of the owner's liability;
2) requisition;
3) confiscation;
4) compulsory disposal of the land plot under the property for State needs; and
5) demolition of an unsafe multi-apartment residential building.
State Registration of Rights to Immovable Property
In Kazakhstan, rights to immovable property are subject to mandatory state registration in accordance with the Civil Code of the Republic of Kazakhstan and provisions of the Law of the Republic of Kazakhstan On State Registration of Rights to Immovable Property of 26 July 2007 (the “State Registration Law”).
When a right to immovable property (or encumbrance thereon) arises, changes or terminates, or when it becomes a subject of legal claims, it must be registered with the legal cadastre.
State registration with the legal cadastre is obligatory with respect to the following rights to immovable property:
1) the right of ownership;
2) the right of operating control;
3) the right of operational management;
4) the land use right for a period of at least one year; and
5) easement in favour of a dominant land plot or another property for a period of at least one year.
Other rights may be registered at the option of right holders.
The following encumbrances on the rights to immovable property require registration with the legal cadastre:
1) the right of use for a period of at least 1 year, including lease, free use, easement, annuity and life-term support;
2) the right of trust management, including custody, guardianship, inheritance/ succession, bankruptcy, etc;
3) pledge;
4) attachment;
5) restrictions (prohibitions) to use and dispose of the immovable property or to perform certain operations imposed by government authorities within the limits of their powers; and
6) other encumbrances on rights to immovable property set out by the laws of the Republic of Kazakhstan other than overriding interests.
State registration with the legal cadastre is obligatory with respect to:
1) changes in identification data of the property required for the legal cadastre maintenance, with certain exceptions;
2) changes in the right holder’s details in the registration sheet of the legal cadastre;
3) change of the type of the right, other than in pursuance of a legislative act;
4) change of the terms and conditions of the agreement if they pertain to the data in the registration sheet, affect the scope of rights determined for the property or if they must be registered upon agreement of the parties; and
5) other changes, if so required by legislative acts or an agreement between the parties.
Pre-emptive interests mean the rights (or encumbrances thereon) to immovable property that, pursuant to legislative acts, are exempt from obligatory state registration with the legal cadastre and are deemed to be valid without state registration.
Overriding interests that do not require obligatory state registration with the legal cadastre include:
1) encumbrances operating as general rules and restrictions set out in legislative acts of the Republic of Kazakhstan;
2) rights (or encumbrances thereon) arising by virtue of regulatory legal acts, including the right to enter land plots and passages through such land plots which are not restricted to public access (public rights of way) and public easements;
3) land use rights for a period of up to 1 year;
4) the right to use property of others for a period of up to 1 year, including the right to lease, free use and easement for up to 1 year;
5) the right of way for the public and transport to electric transmission lines, telephone and telegraph lines and poles, pipelines, geodesic points and other communication lines for public needs;
6) effective possession of the immovable property by persons who are not the right holders until acknowledgment of the effective possessor's right of ownership to the property in due order by acquisitive prescription; and
7) the right to use residential buildings of the state residential property or the right to use residential buildings leased by local executive authorities from privately owned property.
State registration of the rights to immovable property and transactions therewith is performed by “Government for Citizens” Public Corporation.
State registration is charged a duty as determined by the Kazakhstan Tax Code.
The rights (or encumbrances thereon) to immovable property which are subject to obligatory state registration with the legal cadastre in accordance with the State Registration Law are deemed to be created upon state registration thereof, unless otherwise provided for by the Law and other legislative acts.
If registration is not denied, the date of the application filing is deemed to be the date of state registration.
If the legal cadastre information system receives an electronic copy of a title document, then the date of such title confirmation by the registration authority in the form of a notice on the performed registration shall be deemed to be the date of the state registration of such title to real estate.
The rights (or encumbrances thereon) to immovable property which are not subject to obligatory state registration with the legal cadastre are created in accordance with the applicable Kazakhstan laws and regulations, unless otherwise agreed upon between the parties.
The State Registration Law also provides for electronic registration of titles to real estate upon notarial certification of transactions with such real estate.
In particular, when certain rights/encumbrances arise, change or terminate under a deal, certificate of inheritance, certificate of ownership, and when certain rights/ encumbrances arise, change or terminate under a duly notarised deal, they must be electronically registered.
State registration of rights to immovable property (or encumbrances thereon) must be finalized within 3 business days after filing the application with the registration authority, unless otherwise provided for by Kazakhstan law. The electronic registration of titles to real estate shall be performed within one business day after the receipt of duty payment or exemption confirmation. Any encumbrances imposed by government authorities or other authorized persons, as well as any legal claims, must be registered immediately upon filing the appropriate application with the registration authority.