Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova The Kazakh National Agrarian University , Almaty, Kazakhstan

Transcription

1 International Journal of Civil Engineering and Technology (IJCIET) Volume 9, Issue 11, November 2018, pp , Article ID: IJCIET_09_11_233 Available online at ISSN Print: and ISSN Online: IAEME Publication Scopus Indexed ANALYSIS OF THE KAZAKH LEGISLATION CONCERNING THE STATE REGISTRATION OF RIGHTS TO IMMOVABLE PROPERTY AND THE STATE REAL ESTATE CADASTRE IN RELATION TO THE INTERNATIONAL STANDARD ISO 19152:2012 GEOGRAPHIC INFORMATION LAND ADMINISTRATION DOMAIN MODEL Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova The Kazakh National Agrarian University , Almaty, Kazakhstan ABSTRACT The article aims to clarify the procedure for the state registration of rights to immovable property, statutory provisions governing the state registration of rights to immovable property, as well as to elaborate the registration procedure in relation to the international standard ISO 19152: 2012 Land administration domain model. The unified system of state registration of rights to immovable property adapted to the international standard ISO 19152: 2012 Land administration domain model would become an essential component of the infrastructure of market economies, the source of legal information in the field of immovable property rights aimed at increasing investment activity in the Republic of Kazakhstan and the development of a civilized real property market. To attain this end, it is necessary to standardize indicators of the state registration system, to develop and introduce methods and tools for their assessment in real time by means of information and communication technologies. Key words: Immovable Property, Property Registration, ISO 19152:2012 LADM, State Real Estate Cadastre, Real Property Inventory. Cite this Article: Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova, Analysis of the Kazakh Legislation Concerning the State Registration of Rights to Immovable Property and the State Real Estate Cadastre In Relation to the International Standard Iso 19152:2012 Geographic Information Land Administration Domain Model, International Journal of Civil Engineering and Technology, 9(11), 2018, pp editor@iaeme.com

2 Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova 1. INTRODUCTION Nowadays real property forms the basis of the personal existence of citizens and determines production and business activities, as well as the development of enterprises and organizations of all forms of ownership. Kazakhstan has formed and is actively developing the real property market and an increasing number of individuals and legal entities are involved in real estate transactions [1]. Article 6 of the Constitution of the Republic of Kazakhstan stipulates that state and private property are recognized and equally protected in the country. Ownership requires that its use should serve the public good. The existing law determines property owners and items, the scope and limits of exercising the owner's rights, guarantees of their protection [2]. The ownership of immovable property requires the state registration of rights and certain types of real estate transactions accepted by both citizens and organizations. According to the Civil Code of December 27, 1994 and the Law of the Republic of Kazakhstan "On State Registration of Rights to Real Estate" of July 26, 2007 N 310, the state and society recognize some property and ensure its defensive capacity if all rights to this real property are registered in the prescribed manner [3, 4]. This study is relevant since most people deal with legal issues regarding such objects of civil law rights as real property: acts of purchase and sale, transfer by gift, exchange, renting of apartments, houses, cottages, lands, etc. Therefore, it is crucial to know the legislative regulation of these issues. It is also worth mentioning that items of immovable property require certain accounting, control, a special mechanism to prevent abuse, i.e. it is necessary to ensure the validity of transactions. Government and its structures play a significant role in property relations act as a kind of guarantor of legal regulation in the market [5]. 2. DEVELOPING THE INTERNATIONAL STANDARDS PROJECTS CORE CADASTRAL DOMAIN MODEL (CCDM) AND LAND ADMINISTRATION DOMAIN MODEL (LADM) The main tool for the development and compatibility of information systems is modelling. It provides the basis for interaction among systems at the global, regional and local level. In this regard, a version of the Core Cadastral Domain Model was presented for better modelling of the natural environment at the FIG congress in Munich in October 2006 [6]. Conditions for creating such a model are as follows: to consider the main aspects of cadastral registration worldwide, to base the conceptual structure of a new model on Cadastre 2014, to comply with ISO standards, to form a simplified model for more convenient use. The logical development of the CCDM is the Land Administration Domain Model. The LADM is a draft international standard that is partially based on the concept of Cadastre The LADM covers information-related components of land management and enables their global registration in a standard way. On November 1, 2012, the basic LADM acquired the status of the international standard ISO [7]. By 2025, access to land-related information will have been available to all Internet users. The LADM serves the following goals: To cover basic information-related components of land administration; To provide an abstract, conceptual model with four packages related to parties (people and organizations; editor@iaeme.com

3 Analysis of the Kazakh Legislation Concerning the State Registration of Rights to Immovable Property and the State Real Estate Cadastre In Relation to the International Standard Iso 19152:2012 Geographic Information Land Administration Domain Model To provide basic administrative units, rights, responsibilities and restrictions, spatial units, spatial sources and spatial representations; To provide terminology for land administration, based on various national and international systems; To provide a basis for national and regional profiles; and enable the combining of land administration information from different sources in a coherent manner [8, 9]. This ISO standard includes six sections, fifteen annexes and bibliography. The fourth, fifth and sixth sections are the main ones. Section 4 contains the definitions of twenty-five basic terms. Section 5 reveals the overview of the LADM: packages and subpackages, basic classes, state and process modelling diagrams. Section 6 describes each class. The UML class defines a specific entity and its attributes. Annexes contain recommendations for 2D and 3D representations of spatial units (Annex B); present LADM country profiles (Annex D); types of spatial units (Annex E); legal profiles (Annex F). Annex G embraces recommendations on the LADM-INSPIRE relationship (European Union Directive on Spatial Data Infrastructure); Annex H dwells on the LADM-LPIS relationship (land parcel identification system); Annexes K and L reveal the composition of external and interface classes, etc. [10]. Taking into account the status, main directions and trends in the registration of rights to immovable property in developed countries, we have reached the following conclusions: There are certain rules for the registration of rights to immovable property in different countries; Systems of different countries are based on local laws and traditions; The current policy of the state leadership has great influence on the corresponding real estate registration system; There are attempts to create a unified management system (LADM, CCDM); It is necessary to distinguish between management and registration systems. 3. BRIEF OUTLINE OF THE DEVELOPMENT AND CURRENT STATE OF THE REGISTRATION OF RIGHTS TO IMMOVABLE PROPERTY IN THE REPUBLIC OF KAZAKHSTAN, THE RUSSIAN FEDERATION AND UKRAINE The state registration system in Kazakhstan has been functioning for about twenty years. Earlier, the main legislative act was the Decree of the President of the Republic of Kazakhstan, having the force of law, of December 25, 1995 "On the State Registration of Rights to Real Estate and Transactions with Real Estate" (hereinafter referred to as "The decree on the registration of rights to immovable property"). At the same time, the previous legislation on state registration contained many gaps and contradictions, which negatively affected the turnover of real property and increased risks of its participants [1]. The norm obliging citizens to register their rights to immovable property is enshrined in the Civil Code of the Republic of Kazakhstan. In particular, Paragraph 1 of Article 118 establishes that the right of ownership and other rights to immovable property, restrictions on these rights, their emergence, transfer and termination are subject to the state registration. Registration objects include property rights, economic management, operational management, permanent land use, rent, mortgage and servitudes [3]. In addition, registration objects also comprise real estate transactions editor@iaeme.com

4 Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova The adoption of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310 "On the State Registration of Rights to Real Estate" (hereinafter referred to as "The law on state registration") became a new stage in the improvement of the registration system in Kazakhstan. In contrast to the decree on the registration of rights to immovable property, the law on state registration allowed solving many issues with due regard to the interests of rights holders and consumers of information from the legal cadastre and the state [1]. The previously functioning Bureau of Technical Inventory (BTI), transformed into the Office of Real Estate Registration and Evaluation in 1995, did not register the rights to immovable property but the property itself. Such a system did not guarantee the state protection of the rights of property owners. Given the legal nature of the state registration, this activity should be conducted in the system of justice bodies. At the same time, it is impractical to create new organizational structures for these purposes. According to the Decree of the Government of the Republic of Kazakhstan N 236 of February 20, 1997 "On Measures to Implement the Decree of the President of the Republic of Kazakhstan Having the Force of Law of December 25, 1995 N 2727", it was decided to more effectively use the existing units and transfer them to the jurisdiction of the Ministry of Justice [11]. The transfer of these organizations was carried out with the preservation of their functions, staff size, material and technical base and the order of maintenance. New organizations began to register immovable property in a single technological sequence reflecting the technical, value, identification and legal characteristics of real estate objects in the relevant documents. Later the state registration of rights to immovable property was also implemented by sixteen state-owned enterprises under the jurisdiction of "Real Estate Centers" (hereinafter referred to as "The Centers") and their regional branches under the jurisdiction of the registration office of the Ministry of Justice. The activity based on the right of economic management let registering authorities create the necessary material and technical base from the ground up, as well as ensure the flow of significant funds to the state budget. Back then, there was no unified real estate information system in Kazakhstan. As a result, government agencies and other consumers got information resources from the legal cadastre within the framework of information services. The creation of a multifunctional legal cadastre would eliminate double activities of state bodies in collecting information on real estate objects and their owners, i.e. save significant public resources that are currently being spent on creating duplicate information systems. To exclude these negative factors, real estate cadastres should have a unified network [12]. If the registering authority has the primary information contained in various cadastres, the costs incurred by persons in applying for information services will be significantly reduced. In addition, certain conditions will be created for fighting against corruption offenses in state bodies when persons apply for information to any state body keeping this or that cadastre [12]. To ensure the completeness of information in the legal cadastre, databases of former BTIs and Offices of Real Estate Registration and Evaluation were transferred to electronic media. Changes in the state registration rights to immovable property made it more convenient for rights holders. Legislators explain it by the unification of the state registration of rights and the state real estate cadastre, the transfer of their functions to one governmental body. In addition, the reduced period for the state and cadastral registration of immovable property is regarded as an advantage. The creation of a unified database allowed registering real property not only on the documents submitted by the applicants but also on the information contained directly in the state cadastre editor@iaeme.com

5 Analysis of the Kazakh Legislation Concerning the State Registration of Rights to Immovable Property and the State Real Estate Cadastre In Relation to the International Standard Iso 19152:2012 Geographic Information Land Administration Domain Model In the Russian Federation, the registration of rights to immovable property is carried out according to the law, which entered into force on January 2, 2017 the Federal Law of July 13, 2015 "On the State Registration of Real Estate" [13]. Immovable property includes land plots, subsoil plots, as well as structures, buildings, unfinished constructions, residential and non-residential premises, and all objects that cannot be moved without causing incommensurate detriment to their designated purpose [14]. The main types of registered property are as follows: the emergence of property rights, the transfer of property rights, the termination of property rights, mortgage registration, registration of real estate arrest, ban registration [14]. In 2017, a new electronic system of real estate rights was formed - the Unified State Register of Immovable Property that combines the Unified State Register of Rights to Real Estate and Transactions with Real Estate and the Real Estate Cadastre. It is also possible to perform registration actions in electronic form: applicants do not submit paper documents or submit documents by sending them by mail [15]. There are many significant changes in the new law on real estate registration of Taking into account the new registration process in the Russian Federation and the articles presented above, the authors of the article have summed up that the resolution of the problems under consideration will have a positive impact on the quality of public services provided by the Federal Register to state bodies, local governments, organizations and citizens. Moreover, it will contribute to the proper development of real estate turnover, an increase in the investment attractiveness of the real estate market and will provide the necessary level of state property management [15, 16]. The former republics of the Soviet Union underwent certain changes in land management. A new land reform has been implemented in Ukraine since As a result, three land ownership types were formed: state, communal and private. Legal aspects of the registration of land rights and their restrictions acquire particular relevance during the land reform since it meets the state interests in improving the implementation of government functions and the further development of land ownership relations and the land market [8]. The basic principle of the state registration of rights to immovable property in the State Register of Proprietary Rights to Immovable Property is its obligation. The new procedure of registering rights to immovable property began to operate in Ukraine on January 1, The real estate owner confirms their ownership in the State Register of Proprietary Rights to Immovable Property without a paper document confirming their right of ownership. To register some property or carry out other procedures, one should visit a notary or state registrar. Rights holders who do not have title documents for real estate will need to check their personal data in the register. The information is provided on the website of the Ministry of Justice of Ukraine [17]. After analyzing the state of real estate registration, its limitations and encumbrances in Ukraine, the authors have concluded that: The system of registering rights to immovable property functions but has drawbacks in terms of the low level of organization of the new registration system, risks of the decentralization and cancellation of documents; A small number of scientific papers and publications to substantiate the new registration system; The ownership of real estate is recorded only in the public electronic state register but there is a significant risk of the unreliability of this source [17] editor@iaeme.com

6 Aigerim Yesmaganbetova, Dina Dautkanova and Orazkul Duisenbekova The World Bank determines the world ranking of state registration systems annually. The results are published in Doing Business reports that aim to characterize the investment attractiveness of countries around the world. According to the Doing Business 2018 report, the state registration of rights to immovable property in New Zealand had the highest rating in the section "Property Registration". Kazakhstan is ranked the 17 th in the world. There are ratings of some former republics of the USSR: Lithuania the 3 rd, Georgia the 4 th, Kyrgyzstan the 8 th, Russia the 12 th, Azerbaijan the 21 st, Latvia the 22 nd, Uzbekistan the 73 rd, Ukraine the 64 th. For comparison, there are indicators of other developed countries of the European Union: Italy the 23 rd, Germany the 77 th, Great Britain the 47 th [18]. This indicator reflects the total number of procedures, time and money costs required to register immovable property. At the same time, analysts considered standardized conditions with the participation of an entrepreneur considering the possibility of acquiring immovable property with official registration and without any encumbrances or restrictions due to legal disputes. In 2018, the Doing Business report included a new indicator in the "Property Registration" group called the quality index of the land management system. The quality index of the land management system includes four factors: the reliability of the land management system, the transparency of the land management system, the coverage of the land management system and the resolution of legal disputes [19]. Indicators of this rating directly depend on the quality of the services provided and their availability to the population of any given country. 4. CONCLUSION Taking into account the analysis of foreign countries, the authors of the article have concluded that issues related to the state registration of rights to immovable property in the Republic of Kazakhstan were resolved at the legislative level. However, it is worth trying to improve the procedure for registering real property, raise the efficiency of this system by reducing costs and increasing the quantity and quality of services, bring up the data quality to the best world standards for their optimal use in Kazakhstan with due regard to the experience and progress of the registration procedure in other countries. It is advisable to expand functions of the state registration system to increase the transparency of business processes in the real estate market and the investment attractiveness of the Republic of Kazakhstan. REFERENCES [1] Dosmaganova, A. and Baigelov, M. Voprosy gosudarstvennoi registratsii prav na nedvizhimoe imushchestvo i sdelok s nim. Zashchita prava sobstvennosti [Issue of the state registration of rights to immovable property and transactions with immovable property. Property rights protection]. Methodological reference book. Astana: TOO "Institut zakonodatelstva Respubliki Kazakhstan", [2] The Constitution of the Republic of Kazakhstan. [3] The Civil Code of the Republic of Kazakhstan (December 27, 1994; amended in 2012). [4] The Law of the Republic of Kazakhstan "On State Registration of Rights to Real Estate" of July 26, 2007 N 310. [5] Gubareva, A. V. Registratsiya v sfere nedvizhimosti [Real estate registration]. [6] Lemmen C. and van Oosterom P. J. M. The Land Administration Domain Model Standard. Proceedings 5th Land Administration Domain Model Workshop, Kuala Lumpur, Malaysia, September editor@iaeme.com

7 Analysis of the Kazakh Legislation Concerning the State Registration of Rights to Immovable Property and the State Real Estate Cadastre In Relation to the International Standard Iso 19152:2012 Geographic Information Land Administration Domain Model [7] Geographic Information Land Administration Domain Model (LADM). The European standard EN ISO19152:2012, 14 November, [8] Snezhko, I. I. Metodika rascheta tochnosti postroeniya modelei obektov nedvizhimosti v 3D kadastre [Methods of accurate real estate modelling in 3D cadastre]. [9] van Oosterom, P. J. M. Land Administration Domain Model (LADM, ISO 19152). Spatial Unit Package and Spatial Profiles. Quebec, Canada, 4 November, [10] van Oosterom, P. J. M. and Lemmen, Ch. The Land Administration Domain Model (LADM): Motivation, standardisation, application and further development. Land Use Policy, 49, 2015, pp [11] The Decree of the Government of the Republic of Kazakhstan N 236 of February 20, 1997 "On Measures to Implement the Decree of the President of the Republic of Kazakhstan Having the Force of Law of December 25, 1995 N 2727". [12] The Decree of the Government of the Republic of Kazakhstan N 1560 of December 4, 2001 "On the Development and Improvement of the System of the State Registration of Rights to Immovable Property and Transactions with Immovable Property in the Republic of Kazakhstan". [13] The Federal Law of July 13, 2015 "On the State Registration of Real Estate" No. 218-FZ. [14] The Civil Code of the Russian Federation. Part I of November 30, 1994 No. 51-FZ. [15] Filippova, A. P. Zarubezhnyi opyt funktsionirovaniya kadastrovykh informatsionnykh system [The foreign experience in the functioning of information-related cadastre systems]. Zemelnyi vestnik Rossii, 1-2, 2005, pp [16] Andolenko, S. S., Zakharenko, M. O. and Andrіichuk, O. M. Shchodo derzhavnoї reєstratsії prav na zemlyu ta їkh obmezhen [On the state registration of land property rights and their restrictions].donntu.ttp://ea.donntu.edu.ua/bitstream/ /13712/1/andolenko.pd f [17] Gutgarts, E. Registratsiya prav na nedvizhimost po-novomu [The registration of rights to immovable property in a new way]. po_novomu [18] TheWorldBank.RegisteringProperty. registering-property [19] TheWorldBank.RegisteringPropertyMethodologyhttp:// dology/registering-property editor@iaeme.com