1 Real Estate Law
1.1 Please briefly describe the main laws that govern real estate in your jurisdiction. 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.
In Kazakhstan the legislation regulating real estate issues is composed of the following acts:
- Constitution of the Republic of Kazakhstan dated 30 August 1995;
- Civil Code of the Republic of Kazakhstan (the General Part) No. 269-XII dated 27 December 1994;
- Civil Code of the Republic of Kazakhstan (the Special Part) No. 409-I dated 1 July 1999;
- Civil Procedure Code of the Republic of Kazakhstan No. 411-I dated 13 July 1999 (that will cease to be in force as from 1 January 2016);
- Civil Procedure Code of the Republic of Kazakhstan No. 377-V dated 31 October 2015 (to be effective as from 1 January 2016);
- Land Code of the Republic of Kazakhstan No. 442-II dated 20 June 2003;
- Code of the Republic of Kazakhstan On Taxes and Other Obligatory Payments to the Budget No. 99-IV dated 10 December 2008;
- Law of the Republic of Kazakhstan No. 310-III On State Registration of Rights for Immovable Property dated 26 July 2007; and
- Law of the Republic of Kazakhstan No. 242-II On Architectural, Town-Planning and Construction Activity in the Republic of Kazakhstan dated 16 July 2001.
1.2 What is the impact (if any) on real estate of local common law in your jurisdiction?
The legal system of the Republic of Kazakhstan belongs to the Roman-Germanic (continental) legal system, where the sources of law are represented by legal acts. Court decisions do not fall under the definition of normative legal acts, and therefore are not applicable in the form of legislation.
Nevertheless, based on the study of specific cases, the Supreme Court of Kazakhstan adopts regulatory decisions, that judges use as commendatory guides in their practice.
1.3 Are international laws relevant to real estate in your jurisdiction? Please ignore EU legislation enacted locally in EU countries.
The Constitution of the Republic of Kazakhstan recognises principles of international law; it also stipulates that international treaties ratified by Kazakhstan have priority over the local legislative acts. However, real estate issues are governed by local legislative acts, unless a specific international treaty is ratified by Kazakhstan on a specific real estate matter.
2.1 Are there legal restrictions on ownership of real estate by particular classes of persons (e.g. non-resident persons)?
The general rule prescribed by the Land Code establishes that foreigners, stateless persons and foreign legal entities shall enjoy the same rights and obligations as citizens and legal entities of Kazakhstan in all relations on land.
Foreigners, stateless persons and foreign legal entities may have in their private ownership land plots allocated for construction of, or combined with, production and non-production, as well as residential buildings and their complexes, including lands designated for maintenance of buildings in accordance with their purpose.
Provision of land located in the border areas and borderland of Kazakhstan in private ownership for foreigners, stateless persons and foreign legal entities is not allowed.
Foreigners, as well as legal entities with more than 50% share holding by foreign individuals or legal entities, may possess land plots provided for agriculture, afforestation, subsidiary agriculture only on the right of temporary use of land under lease for a period not exceeding twenty-five years.
Foreigners, stateless persons and foreign legal entities are not entitled to hold a permanent land use right.
3 Real Estate Rights
3.1 What are the types of rights over land recognised in your jurisdiction? Are any of them purely contractual between the parties?
Kazakhstan recognises the following rights for land:
- ownership right, that is divided into:
- state ownership right; and
- private ownership right;
- land use right, that is divided into:
- right of permanent or temporary use (including the rights of economic and operational management);
- alienable or inalienable right of use; and
- right of use acquired for consideration or free of any consideration.
A person or entity holding ownership right over a land plot is entitled to perform any transaction on its disposal without change of its designated use type.
The right of use over land may also be transferred to other persons or entities, with certain exceptions, including exception for temporary consideration-free land use right that may not be transferred on a contractual basis. Other exceptions are provided for land plots with particular designated use types.
3.2 Are there any scenarios where the right to a real estate diverges from the right to a building constructed thereon?
Ownership right over buildings (constructions and structures) entails the ownership right to a land plot where such buildings are located. The right of (permanent or temporary) use over building entails the right of (permanent or temporary) use of the land plot occupied by the specified object.
These rights are inseparable.
4 System of Registration
4.1 Is all land in your jurisdiction required to be registered? What land (or rights) are unregistered?
Any origin, change or suspension of rights (including encumbrance of rights) for real estate are subject to obligatory state registration in a state cadaster. Exception from this rule is transfer of right to use real estate (e.g. lease agreement) for a term of less than one year.
4.2 Is there a state guarantee of title? What does it guarantee?
The Constitution of the Republic of Kazakhstan guarantees to its citizens the right to own any legally acquired property. Law shall guarantee property, including the right of its inheritance. No one may be deprived of his property, unless otherwise stipulated by a court decision. Compulsory expropriation of property for public needs in extraordinary cases stipulated by law may be exercised on condition of its equivalent compensation only.
Everyone in Kazakhstan shall have the right to freedom of entrepreneurial activity, and free use of their property for any legal entrepreneurial activity.
4.3 What rights in land are compulsory registrable? What (if any) is the consequence of non-registration?
The following rights to real estate are subject to compulsory registration with state registry: (1) the right of ownership; (2) the right of economic management; (3) the right of operational management; (4) land use rights for a period not less than one year; and (5) perpetual use in favour of the dominant land plot or other property for a period of not less than one year.
Other rights may be registered at the request of owners.
The following rights of encumbrance for real estate are also subject to compulsory state registration: (1) the right of use for a period not less than one year, including rent, free use, easements, right of life maintenance of a dependant; (2) the right of trust management, including the guardianship, legal relations in inheritance, bankruptcy and the like; (3) pledge; (4) arrest; (5) restrictions on the use and disposal of real estate, or to perform certain tasks imposed by state bodies within their competence; and (6) other encumbrance of real estate rights stipulated by the laws of the Republic of Kazakhstan, with the exception of pre-emptive interest.
Failure to meet the six-month term for registration of rights for real estate may entail a fine equal to 10 monthly-calculated indexes (MCI) for individuals and 20 MCI for legal entities. (MCI is a coefficient established for each year, and for the year 2015, 1 MCI equals 1982 Tenge).
The rights for real estate that are subject to compulsory state registration are deemed to be transferred from the moment of their state registration. Thus, failure to register the right for a land plot or other type of real estate may result in loss of the right for such property.
4.4 What rights in land are not required to be registered?
The rights for immovable property that are not subject to compulsory state registration in the legal cadaster are:
1) encumbrances, being as general rules and prohibitions established by the legislative acts;
2) the rights (encumbrances of rights) that arise on the basis of regulations, including the right of location on land plots and transit passages not closed for public access, public easements;
3) the right to use real estate for less than one year, including the right to lease, gratuitous use, perpetual use;
4) the actual possession of real estate by persons not holding the ownership right, before the moment of recognition of the ownership right of the actual owner by prescription; and
5) the right to use residential premises owned by the state housing stock, or the right to use the residential premises leased by local executive bodies in the private housing stock.
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.
Kazakhstan legislation does not separate the first and subsequent registrations of rights for the real estate, nor does it provide for any probationary periods.
4.6 On a land sale, when is title (or ownership) transferred to the buyer?
The rights of ownership and use for real estate in Kazakhstan that are subject to compulsory state registration are transferred from the moment of their state registration.
4.7 Please briefly describe how some rights obtain priority over other rights. Do earlier rights defeat later rights?
The rights for the real estate can be proved by state registration documents. Any disputes over such rights can be solved by courts only. Joint or shared rights for a land plot are not separated by time when they occurred, but by share portions in such property.
5 The Registry / Registries
5.1 How many land registries operate in your jurisdiction? If more than one please specify their differing rules and requirements.
In Kazakhstan there is only one legal cadaster – the Unified State Registry of registered right for immovable property, information on registered right for civil aircraft, marine vessels, inland waterway vessels and "river-sea" sailing ships.
5.2 Does the land registry issue a physical title document to the owners of registered real estate?
Title for the immovable property is confirmed either by a hard-copy certificate on state registration, or by an electronic (printed) query on state registration.
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?
In cases where the rights (encumbrances of rights) appear, modified or terminated on the basis of the transaction with its notary certification, electronic registration is carried out.
Electronic registration is performed at the notary's office, whereas the standard registration is performed by submitting the application for registration by both the seller and buyer in person to the territorial registering authority. There will be required: sale and purchase agreement; title documents; confirmation of payment of state fee for registration; notarised consents of spouses of the parties for individuals; and constitutive documents for legal entities.
Information on the state registration of rights to immovable property and transactions with them are open and accessible. The exception is the information classified as state secrets or non-state secrets.
5.4 Can compensation be claimed from the registry/registries if it/they makes a mistake?
The effective legislation of the Republic of Kazakhstan does not provide for any liability of the registering authority for its mistakes. However, the general rule provided by the Civil Code provides that any losses caused to a citizen or a legal entity as a result of the adoption of an act of a state authority, as well as the actions (or failure to act) of their officials, shall be reimbursed by the Republic of Kazakhstan, or an administrative-territorial unit, respectively.
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?
Generally anyone who has an electronic signature can access the Electronic Government (electronic database), however, certain information may be obtained only by the person or entity to whom the information relates directly. Likewise, information on property rights registered on a person or entity can be obtained only by such person or entity, whereas information on encumbrance rights for such property is open to anyone.
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 your jurisdiction? Please briefly describe their roles and/or duties.
Besides the seller and buyer, and buyer's finance provider, in transactions of real estate the following may also take part: (1) state registration authority (territorial divisions of justice); (2) centre for public services; (3) notaries; (4) lawyers; (5) real estate agencies/ brokers; (6) spouses or other persons having rights to claim on the property of the buyer and the seller; and (7) representatives of the buyer and the seller acting on the basis of a power of attorney or other legal document.
(1) The state registration authority is represented by the Ministry of Justice and its territorial divisions, and performs the functions of verification of the transaction documents, entry of the data into the state registry, and issuance of the registration documents; (2) centres for public services are established to provide state services on the basis of the one-stop principle, where individuals and legal entities may benefit from different state services, including the service on preliminary review, receipt of the documents for registration, receipt of certain queries and certificates, and other; (3) notaries provide services on certification of transactions, copies of documents, certain acts of civil status and signatures of the transaction parties; (4) lawyers provide consultation services and services on the composition of legal documents; (5) real estate agencies/ brokers provide services on search of immovable property upon request of a seller or a buyer; (6) spouses or other persons having rights to claim on the property rights are normally required to provide their consent for the transaction on immovable property; and (7) representatives of the parties of the transaction may act on behalf of the parties on the basis of a power of attorney, if required.
6.2 How and on what basis are these persons remunerated?
Remuneration of the state authorities and notaries is performed based on fixed fees provided by law; there is no remuneration of centres for public services for transactions of immovable property; and the remaining participants are remunerated by mutual agreement.
6.3 Do you feel there is a noticeable increase in the availability of capital to finance real estate transactions in your jurisdiction, whether equity or debt? What are the main sources of capital you see active in your market?
The main source of capital is equity and banking loans (at the primary market).
There are some signs of the moderation on the real estate market in Kazakhstan. The recent depreciation of the national currency has required the adjustment of the prices and the expectations of participants, which will take some time. The ambiguity of the pricing also affects the willingness of investors to participate in the market in any form, equity or debt. Moreover, many institutional investors (banks) have suspended their mortgage programmes; others have tightened requirements for potential borrowers. During this year the mortgage market has shrunk in real terms.
6.4 What is the appetite for investors and developers in your region to look beyond primary real estate markets and transact business in secondary or even tertiary markets? Please give examples of significant secondary or tertiary real estate transactions, if relevant.
Secondary and tertiary real estate markets in Kazakhstan are more related with the functioning of the state-owned Kazakh Mortgage Company, which successfully buys original portfolios from banks and issues the mortgage-backed bonds. The demand for these securities from private institutional investors is stable due to the quasi-state status of the bonds and relative scarcity of other reliable instruments.
6.5 Have you observed any trends in particular market sub sectors slowing down in your jurisdiction in terms of their attractiveness to investors/developers? Please give examples.
There was high interest from primary investors in the rental property in previous periods – the rental market was inefficient/distorted and rental rates in Kazakhstan allowed above-the-norm profits to be earned. Now we observe the market correction, rental rates for all types of property are decreasing and this sub sector is slowing down.
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?
According to Kazakhstan law, sale and purchase of real estate is possible if the following requirements are met:
1) real estate may be sold only by the ultimate owner, or by an authorised representative upon the explicit consent of the owner;
2) the real estate has to be free of any encumbrances, or there must be an explicit consent of the charge holder;
3) the land plot on sale has to be sold in accordance with its designated use;
4) if the seller sells its share in the jointly owned real estate, it is possible only upon receipt of the consent of the other owners;
5) the sale and purchase agreement must be in writing and must be either notary-certified or signed by all the parties, with subsequent signing of the application for registration of change of the ownership right by all the transaction parties in person; and
6) the sale and purchase of the real estate must be registered with justice authorities.
7.2 Is the seller under a duty of disclosure? What matters must be disclosed?
Although the legislation does not explicitly oblige the seller to disclose certain information, the Civil Code establishes an obligation of the seller to provide the buyer with the goods free of any third party rights, unless the buyer has agreed to accept the goods with third party rights. Further, the Civil Code provides for obligations of the seller to transfer to the buyer goods compliant with the quality defined in the agreement. If the quality is not defined, it must be suitable for its designated use. Should quality, quantity or assortment not comply with the agreement, the buyer is entitled torepudiate the agreement.
7.3 Can the seller be liable to the buyer for misrepresentation?
A transaction concluded as a result of deceit, which is of an essential nature, can be deemed invalid by the court upon the claim of the parties, acting under the influence of delusions. Misleading as to the nature of the transaction, or the identity of such qualities of its subject, which greatly reduces the possibility of use of the real estate for other purposes, have a considerable importance. Misconception motives can serve as grounds for the invalidity of the transaction only if there was inclusion of such motive in its content as a condition precedent or dissolving condition.
If confusion was caused by gross negligence of a participant in the transaction or it is covered by its business risks, the court considering the circumstances and interests of the other participant is entitled to refuse the claim for invalidation of the transaction.
A transaction made under the influence of fraud, violence, threats, or a transaction which a person was forced to make due to the exceptional circumstances of the extremely unfavourable conditions, of which the other party took advantage (bondage transaction) may be declared void by a court on the claim of the victim.
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?
Contractual warranties are normally agreed between the parties. Normally, contracts concluded at the notary, or drafted by lawyers, contain at least general warranties as to the title of the property, absence of any third party rights, etc. However, in practice, buyers prefer to request copies of documents confirming all the information required, rather than relying on seller guarantees prescribed in the contract.
7.5 Does the seller warrant its ownership in any way? Please give details.
Buyers always request, and sellers provide, title documents before the transaction. This information can also be checked with the Electronic Government (EGov) online. Moreover, the ownership right is verified by notaries, and if the transaction is concluded without notary certification – by registering authority, as the only alternative to notary certification of the sale and purchase transaction – the application for registration of the property must be signed by both seller and buyer. Upon signing of the application by the parties of the transaction, the registering authority verifies the ownership right, right of disposal and existence of any encumbrances.
7.6 What (if any) are the liabilities of the buyer (in addition to paying the sale price)?
The buyer, having signed the sale and purchase agreement, has a liability to accept the property, to pay for it and register the change of the title with the registering authority. The buyer also pays the state fee for such registration.
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?
Commercial banks are the main lenders on the real estate market in Kazakhstan. There are several important regulations for banks in terms of real estate finance. First of all, there are general restrictions on lending in a foreign currency and increased requirements for reserves (provisions) on loans. Second, there is wide protection of the rights of mortgagors, including restrictions on the maximum amount of fines.
In case of financing of the construction by private consumers (buyers), the foreign constructor should establish a Kazakhstani entity.
8.2 What are the main methods by which a real estate lender seeks to protect itself from default by the borrower?
The main means of protection from borrowers' default is the establishment of a pledge/mortgage. Besides the mortgage over the real estate, which is the subject of the transaction, the lender may ask for an additional pledge.
Other additional methods for securing loans are a joint guarantee of a third person and insurance.
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?
A mortgaged property can be realised via auctions through the court and out-of-court. In case of realisation out-of-court, a mortgagee hasn't right to require any unreceived amount of loan (interest, fines) from a mortgagor, besides the amount of sales.
8.4 What minimum formalities are required for real estate lending?
Minimum formalities for real estate lending are:
- according to the banking regulations – the submission of the application with the supporting documents; and
- according to the Civil Code – the signing of the Loan Agreement in written form.
8.5 How is a real estate lender protected from claims against the borrower or the real estate asset by other creditors?
A real estate lender has the collateral right on the property and claims of other creditors cannot be submitted to the mortgaged property.
9.1 Are transfers of real estate subject to a transfer tax? How much? Who is liable?
Transfer of real estate is not subject to any taxation in Kazakhstan.
9.2 When is the transfer tax paid?
The transfer tax is not applicable.
9.3 Are transfers of real estate by individuals subject to income tax?
The income tax is applicable to individuals when the income was received from increased value from sale of residential premises (houses, garages, private farming facilities) that were owned for less than one year from the date of registration of the property rights. The individual income tax comprises 10% of the increased value.
9.4 Are transfers of real estate subject to VAT? How much? Who is liable? Are there any exemptions?
Sale of a residential building (or part of a residential building), and/or lease of such, including sub-letting, are exempt from VAT, except for: (1) sale or lease of a residential building used to provide accommodation services, with certain exceptions for social accommodation facilities; (2) provision of accommodation services, with the same exceptions for social accommodation services; and 3) sale or lease of an apartment building, consisting entirely of non-residential premises.
Transfer of ownership right, right of use and/or disposal of land, and/or land lease, including sublease, is exempt from VAT.
Not exempt from the value added tax is a: (1) fee for the transfer of land for the parking or storage of cars and other vehicles; (2) transfer of the right of ownership and/or use, and/or right of disposal of land occupied by residential building, used to provide hotel services, a building that is not a residential building, as well as the rent of the land, including sublease.
9.5 What other tax or taxes (if any) are payable by the seller on the disposal of a property?
Depending on whether the seller is a corporate entity, individual entrepreneur or an individual, there may apply the following taxes: (1) corporate income tax; (2) individual income tax from individual entrepreneurs; and (3) individual income tax from individuals.
9.6 Is taxation different if ownership of a company (or other entity) owning real estate is transferred?
Generally the taxation at sale of a legal entity is not different depending on whether it has real estate or not. The exception is taxation of non-residents obtaining income from sources in the Republic of Kazakhstan (including local real estate), which are subject to 20% tax for income received from increased value of certain property, including real estate located in Kazakhstan.
10 Leases of Business Premises
10.1 Please briefly describe the main laws that regulate leases of business premises.
Issues related to lease of premises, including business premises, are regulated by the Civil Code, Land Code of the Republic of Kazakhstan, as well as the Law On State Registration of Rights for Immovable Property.
10.2 What types of business lease exist?
The legislation of Kazakhstan does not distinguish different types of business lease.
10.3 What are the typical provisions for leases of business premises in your jurisdiction 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?
(a) Length of Term. The Civil Code established that the term of lease shall be defined in the agreement. If not – it is deemed to be concluded for an indefinite term. Lease agreements concluded for a term not less than 1 year or for an indefinite term, are subject to compulsory state registration.
(b) Rent Increases. Increase of the rent is possible upon mutual agreement of the parties, but not more than once a year, unless other minimum frequency term is defined in the agreement. Each party may also claim increase/decrease of the rent based on justified grounds.
(c) Tenant's Rights to Sell or Sublease. The tenant is entitled, subject to a consent of the landlord, to sublease the property, assign its rights and obligations to another person, provide the rented property for free use, as well as to pledge its rights, and contribute them to an authorised capital of legal entities, unless otherwise established by legislative acts. In these cases, except for lease assignment, the tenant remains responsible under the lease contract before the landlord.
(d) Insurance. It is a common practice in Kazakhstan for the landlord of business premises to request the tenant to insure the rented property. Insurance of residential premises is not well-spread.
(e) (i) Change of Control of the Tenant. As change of control of the tenant does not directly imply any legal consequences for a lease agreement (unless any specific limitations are set in such agreement), this issue is not regulated by law. Parties may establish any limitations or requirements for change of control on a contractual basis. (e) (ii) Transfer of Lease as a Result of Corporate Restructuring (e.g. Merger). The law allows transfer of lease as a result of corporate restructuring or assignment of rights under the lease agreement, unless otherwise provided by the lease agreement. (f) Repairs. The landlord is obliged to make capital repairs or repairs caused by urgent necessity, unless otherwise provided by law or the agreement. The tenant is responsible to maintain the property in good condition, perform current repairs and bear the costs of the property, unless otherwise provided by law or contract.
10.4 What taxes are payable on rent either by the landlord or tenant of a business lease?
The Tax Code defines the following taxes for lease of business properties:
- landlord/individual – 10% individual income tax;
- individual entrepreneur paying taxes on the basis of a patent – 2% individual income tax;
- individual entrepreneur paying taxes on the basis of a simplified declaration – 3% individual income tax;
- legal entity paying taxes on the basis of a simplified declaration – 3% corporate income tax; and
- legal entity paying taxes on a general basis – 20% corporate income tax.
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?
Termination of lease agreement is possible: (1) upon its expiration; (2) upon demand of either party by court decision; (3) upon request of the landlord if: (a) the tenant uses the property with a material breach of agreement or nature of the property, regardless of written warnings of the landlord); (b) the tenant intentionally or negligently substantially deteriorates the property; (c) the tenant fails to make payment on time more than twice; or (d) the tenant does not make capital repairs of the property on time, save that this obligation is on the landlord under law or agreement; (4) upon request of the tenant if: (a) the landlord does not provide or creates obstacles for use of the property; (b) the landlord does not perform capital repairs, save that this obligation is on the tenant under law or agreement; (c) the property has defects preventing its use, which were not specified in the contract by the landlord and tenant reasonably could not know about them; or (d) if the property becomes unsuitable for use due to circumstances for which the tenant is not responsible.
The tenant that has duly performed its obligations, at expiration of the agreement ceteris paribus has a pre-emptive right to sign the agreement for a new term.
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?
The landlord and the tenant cease to be liable for their respective obligations under the lease once they have sold their interest. Responsibility for pre-sale noncompliance lies on the parties that were responsible before the sale.
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 are no "green obligations" established by law for lease agreements. However, it is becoming popular for large companies to adopt internal regulations, policies and even requirements to choose suppliers and other partners that are in compliance with such policies/provisions.
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 main legal acts in Kazakhstan regulating zoning issues are: (1) Land Code – stipulates general provisions on zoning, establishes provisions on protecting state lands, requirements on use of the lands; (2) Law on Architectural, Town-Planning and Construction Activity in the Republic of Kazakhstan – establishes requirements for use of lands, zoning, defines territorial authorities in zoning; (3) Law on Specially Protected Nature Territories – establishes provisions on zoning natural parks and other specially protected nature territories.
The main laws on environmental issues are: (1) Ecological Code – establishes main provisions and requirements on environmental issues; (2) Water Code – establishes provisions on the protection of water objects; (3) Law of the Republic of Kazakhstan On National Security – establishes provisions on national ecological safety; and (4) Law on Specially Protected Nature Territories – establishes provisions on protection of natural parks and other specially protected nature territories.
11.2 Can the state force land owners to sell land to it? If so please briefly describe including price mechanism.
Compulsory expropriation of land for state needs is allowed in extraordinary cases stipulated by law when it is impossible to meet these needs any other way and provided that fair compensation is paid for the land. The amount of the compensation has to be agreed by the owner, or there has to be a court resolution establishing the expropriation terms.
11.3 Which bodies control land/building use and/or occupation and environmental regulation? How do buyers obtain reliable information on these matters?
The main state authorities controlling the use and occupation of lands and buildings are:
(1) Ministry of Justice of the Republic of Kazakhstan and its territorial divisions (registering authority); (2) Committee of the Republic of Kazakhstan On the Matters of Construction, Housing and Public Utilities and Management of Land Resources; and (3) local mayor administrations – Akimats.
Buyers may use Electronic Government to obtain information on title and encumbrance issues. All other information may be obtained by submitting written queries/request letters to the named authorities.
11.4 What main permits or licences are required for building works and/or the use of real estate?
The main licences required for building works on real estate are: (1) licence for exploratory works; (2) licence for design works; (3) licence for construction and installation works; and (4) licence for activity in organising construction of residential premises with a view to attracting money from equity-holders.
11.5 Are building/use permits and licences commonly obtained in your jurisdiction? Can implied permission be obtained in any way (e.g. by long use)?
A licence for construction is an obligatory requirement for construction of real estate, with certain exceptions. No implied permission is recognised in Kazakhstan.
11.6 What is the appropriate cost of building/use permits and the time involved in obtaining them?
An application for a construction licence is reviewed and a response is issued by the authorised authority within 15 business days. The licence fee comprises 10 monthly-calculated indexes (1 MCI for 2015 = 1,982 Tenge).
11.7 Are there any regulations on the protection of historic monuments in your jurisdiction? If any, when and how are they likely to affect the transfer of rights in real estate?
There is a special Law of the Republic of Kazakhstan On Protection and Use of Objects of Historical and Cultural Legacy. Another applicable legal act is a Law of the Republic of Kazakhstan On State Property. If a real estate or part of it has been recognised as an object of historical and cultural legacy of Kazakhstan, any change or transfer of such property may be performed only with a notification of the local administration authorities.
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 your jurisdiction?
The Ministry of Energy and its several departments keep a registry of contaminated areas, a registry of sources of pollution and contamination, registry of carbon units, and a registry of ecologically hazardous technologies, technics and equipment. Thus, a potential buyer may always request information on a particular real estate object and its potential contamination status.
11.9 In what circumstances (if any) is environmental clean up ever mandatory?
The Ecological Code establishes that, at the planning and construction of city buildings, there must be provided and implemented measures on sanitation and safe waste management in production and consumption. A forest park, and green and protected zones with a limited regime of nature must also be created. Also, the same Code stipulates obligations for entities and individuals engaged in potentially ecologically harmful activity on environmental clean-ups.
11.10 Please briefly outline any regulatory requirements for the assessment and management of the energy performance of buildings in your jurisdiction.
Assessments and management of energy performance are regulated by the Law of the Republic of Kazakhstan On Energy Saving and Energy Efficiency, Law of the Republic of Kazakhstan On Electro Energy, as well as the Decree of the President of the Republic of Kazakhstan On the State Program for Acceleration of Industrial-Innovative Development of Kazakhstan. The main requirements for energy saving and energy efficiency are mostly directed towards new buildings; they include, among others, requirements to design and construct the buildings with energy-saving standards; use of energy-saving materials and equipment; use of instruments metering energy and water resources; etc.
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).
At the initiative of the President of the Republic of Kazakhstan, a concept for the transition to a "green" economy has been developed. First of all, the Green Economy Presidential Concept provides a list of priorities, mainly aimed at reforming certain sectors of the economy.
As part of the transition to a "green" economy, it is aimed: (1) to increase resource efficiency; (2) for Kazakhstan to improve its infrastructure; and (3) to improve the welfare of the population.
The state keeps a registry of carbon dioxide emissions. The state issues quota units for any activity with carbon dioxide emissions. There are severe reporting requirements for subsoil-users on the acquisition and alienation of quota units received and transmitted as a result of projects' carbon units.
12.2 Are there any national greenhouse gas emissions reduction targets?
There are severe reporting requirements for subsoil-users on the actual amount of emissions and removals of greenhouse gases over the reporting period.
12.3 Are there any other regulatory measures (not already mentioned) which aim to improve the sustainability of both newly constructed and existing buildings?
The above-described legislative acts, as well as the Green Economy Presidential Concept, are directed at reducing any pollution and contamination effects and improving the sustainability of newly constructed and existing buildings. Within this Concept, currently, Kazakhstan has energy service companies, designed to carry out activities in the field of troubleshooting of devices' works heating.
Originally published in ICLG
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