Kazakhstan: Novelties In The Legislation On Construction And Real Estate In Kazakhstan

Last Updated: 17 December 2018
Article by Birzhan Zharasbayev

For your attention, we provide herein a brief review of the major amendments in the field of immovable property and construction enacted by the Law dated May 24, 2018 "On amendments and alterations to certain legislative acts of the Republic of Kazakhstan on the improvement of regulation of business activities" (Amendments Law or New Law).

Amendments to the Law "On architectural, town planning and construction activities in the Republic of Kazakhstan" (Construction Law)

The Amendments Law specifies that a negative conclusion of expert examination shall be the evidence that design contractors violated the requirements for the design and estimate documentation (DED), and such negative conclusion is also the basis for liability under law. At the same time, experts are restricted from issuing soft-law comments (i.e. comments that provide recommendations); in addition, the uncovered violations need to be substantiated with references to certain legislative acts, regulations and guidelines.

We would also like to mention that the Construction Law already provides for the binding nature of the responsibility of both the design contractor, acting as the developer of the DED, and the expert, who issued a positive opinion on it while identifying violations in the DED at the stage of construction.

State architectural and construction supervision authorities (GASK) may now visit facilities under construction at any time for the purpose of preventive supervision and surveillance of a precautionary nature. To this end, the New Law establishes a certain priority for visiting facilities under construction. However, notwithstanding the priority that was established by the New Law, facilities under construction should be visited first in the case of an emergency on site.

Under the Amendments Law, it is now the State Corporation "Government for Citizens" (State Corporation) appointed for the collection of all documentation which, according to the Construction Law, evidences the acceptance of a facility into operation from construction customers. Previously these documents were sent to GASK at the location of the construction facility.

The New Law presents amendments which simplify the process to obtain architectural and planning assignment (APA) along with technical conditions (TC) for connection to utilities. Thus, it shall be enough to have a decision of local executive authorities which grants the land title to the customer's or customers' already existing land title for the purpose of obtaining the APA from local executive authorities. It would also be useful to mention that starting from 2015, TC are to be issued along with the APA upon the application of customers to the one-stop-shop principle - either through the State Corporation or "electronic government" website (egov.kz).

In addition, the Amendments Law specifies that the act of acceptance signature date (not the date of its approval, as it had been specified before) is considered both the date of its approval and the date the facility is put into operation.

Changes to the Land Code

The functions of the State Corporation have been refined by the amendments in so far as it is now authorised to provide services on the issuance of TC for connection to utilities of holders of natural monopolies and quasi-public sector services.

The directives for the establishment and termination of encumbrances on the land plots are now also to be addressed by state authorities to the State Corporation in charge of keeping records and to be reflected in the information system.

The definition of 'functional zone' has been provided, although this term has already been used in the Land Code, which is specified as a conditional area including a group of land plots' designations in localities with unified land use regime, whilst specific types of functional zones remain unchanged (housing, social, commercial, other).

At the same time, the New Law allows land-users to change their identification document if it has information only about the designation of the land plot and to receive a new document additionally identifying a functional zone.  It is worth reminding that starting from January 2015, according to preceding amendments to the Land Code, there is no need to change the land plot's designation when it is going to be utilised within the same functional zone.

When it comes to a restriction to change a designation for land plots of agricultural designation, being previously in force, the New Law has introduced a new clarifying amendment that such restriction relates to land plots granted specifically for farming and agricultural production.

Alterations to the Environmental Code

The New Law has defined explicitly that if facilities of category II, III and IV are supposed to be built within the territory of the existing facilities of category I, then the state ecological expertise of their design documentation is to be undertaken by local executive authorities of the oblast, cities of national significance and the capital. With regard to category I facilities, the state expertise may be conducted only by a central competent authority (currently it is the Ministry of Energy) but not by accredited experts as was allowed previously.

Documents for the state ecological expertise are now accepted in electronic form only, which would result to a substantial lowering of actions on the side of applicants (although technically this amendment has been incorporated by another legislative act, it became effective only starting from June 2018).

Another substantial improvement relates to simplifying procedures for obtaining clearances for emissions into the environment for facilities of category I.  Now if the state ecological opinion is positive, then the clearance for emissions into the environment shall be issued in parallel with the mentioned opinion, and it should contain emissions permitted rates.

It has been documented at the level of the Ecological Code that the ecological expertise (in contrast to the state ecological expertise) for facilities to be built of category II, III and IV shall be conducted by attested experts, and such ecological expertise will be part of a complex non-governmental expertise. This feature allows applicants to exercise benefits of the one-stop-shop principle and not to apply for the ecological expertise opinion separately.

Terms and procedures of the state ecological expertise have also been updated positively. For example, for facilities of category I, this term is equal to up to 45 business days (previously two months), for category II facilities, 35 business days (previously one month), for categories III and IV facilities, 15 business days (previously 10 business days) once documentation becomes available. The mentioned terms do not cover timeframes for examination of documents submitted for expertise as to their completeness, which remain unchanged: for category I facilities up to five business days and for category II, III and IV facilities up to three business days from the date of documents' registration.

Meanwhile, according to previous procedures, applicants were unable to address comments before the receipt of a negative ecological expert's opinion, when they were forced to address comments, re-submit corrected documentation and wait for the opinion once again during the same long-term period.  Now all comments become available for applicants on a preliminary basis (i.e. before the official issuance of the ecological opinion), enabling the possibility to address them and re-submit a revised draft. Applicants will receive an unfavourable opinion and will be forced to pass through an ecological expert opinion again, only if they fail to rectify all issues which had been highlighted in comments within the terms provided by the New Law.

Adjustments to the Law "On State Registration of Rights for Immovable Properties (Law on State Registration)

The most major amendment is that the function of the registering body has been transferred to the State Corporation. Historically this function was exercised by justice authorities.

Thus, the State Corporation is defined as the authority empowered to (i) maintain the information system of the legal cadaster for identification and technical data of newly constructed facilities, and (ii) register rights associated with the immovable property. However, justice authorities will remain acting as a supervising body, and their main focus shall be monitoring the State Corporation's activity to comply with the state policies and regulations.

Technical examination and obtaining a technical passport are no longer required for newly constructed immovables. In addition, the procedure of electronic registration via notary electronic databases has been further detailed and improved.

It is now strictly envisaged at the level of the Law on State Registration that the only reason not to grant state registration of rights pertaining to immovable property shall be non-compliance of erected facilities with the applicable laws regulating architectural, town planning and construction.

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