Children's housing rights: how to protect them when dividing and selling a flat

Usually people come with this question at the moment when the family is breaking up, or when a flat where a child lives needs to be sold or exchanged. A parent finds out that the housing is registered in the name of one of the spouses, and the child is not named anywhere, or that only the adult appears in the sale and purchase agreement. Anxiety follows: will the child keep a place to live, and what does the law actually protect.

From this article you will understand what guarantees children's housing rights give and what they depend on: the ownership regime, the source of the funds used to buy the property, and whether a share is documented. We look separately at how the court checks whether the child's interests have been infringed on division, and which documents confirm the child's right to the flat.

Children's housing rights: what the law actually protects

Housing protection for a minor in Kazakhstan is made up of several rules. A child has the right to live together with the parents regardless of where the housing is registered and who owns it. When spouses' housing is divided, the court considers the child's interests separately from the question of who will get the share.

Privatisation is also tied to housing: a minor living in housing being privatised is included among the participants and receives a share, and a waiver of the share on the child's behalf is not allowed without the consent of the guardianship authority. Housing rules answer questions about the share, use and preservation of the housing, while family rules govern the child's place of residence and the parents' involvement in maintenance and upbringing.

What the law protects in the housing sphere:

the child's right to live in the parents' housing regardless of ownership;

When housing is divided between spouses: how children's housing rights are taken into account

Housing acquired during the marriage is considered the joint property of the spouses, and their shares are equal unless a marriage contract or a division agreement provides otherwise. The presence of minor children does not in itself increase the share of the parent they stay with: children are not participants in the spouses' joint property, and their housing rights are protected through other mechanisms.

On division, the court examines whether the child will keep a home. If the flat was acquired during the marriage and is used as the residence of a minor, the parent with whom the child stays may receive a preferential right to it, with compensation of the other parent's share paid to them. Funds invested in the housing are also taken into account: housing payments, targeted assistance, and pension savings used for housing, if confirmed by documents.

• As a general rule, the spouses' shares are equal, and children are not part of the joint property.
• The minor's residence in the flat is taken into account when choosing how to divide it.
• The parent with whom the child stays may receive the housing with compensation of the other spouse's share.
• Property registered in the child's name is not subject to division between the spouses.
• A division agreement or a marriage contract may change how housing is distributed.

Who owns the flat: parents' ownership and the child's right to housing

A child does not automatically become a co-owner of the parents' flat: neither birth, nor living there, nor registration creates a share. The owner is the person in whose name the right is registered under a sale and purchase agreement, a gift agreement, privatisation or by inheritance. A child living in the flat means using the housing together with the parent, not participating in ownership, so the question of a share is decided by the documents establishing the origin of the right, not by the fact of living there.

An independent right to a share arises when the child is named in the title document: purchase of housing using funds in the child's name, a gift, allocation of a share by agreement, inheritance. The right is then recorded in the Legal Cadastre, and the child becomes an equal co-owner. Their share cannot be arbitrarily reduced or disposed of without the guarantees established by law.

• a child becomes a co-owner if named in a sale and purchase agreement, a gift agreement or another title document
• a share arises when a flat is received by inheritance or when a share is allocated by agreement
• purchase of housing using funds in the child's name entails registration of their share
• living in and being registered in the parents' flat does not create an independent ownership right
• in respect of a flat owned only by the parents, the child retains the right of use
• division of property between spouses does not deprive the child of the right to use the parent's housing

Shares in a flat: how to secure a child's housing rights in documents

A child's housing rights are formalised by an agreement on the allocation of a share, under which the child becomes a co-owner, or by a gift agreement — the share is transferred free of charge. On privatisation, the child is included among the participants and receives a share on equal terms with the adults.

The agreement or contract is drawn up in writing and certified by a notary, and the right is registered in the Legal Cadastre through a Public Service Centre. Before the age of fourteen, the parents act on the child's behalf; from the age of fourteen, the child signs documents with their consent.

Transactions involving a minor's housing require the consent of the guardianship and trusteeship authority — for the disposal or change of a share, so as not to worsen the child's housing conditions. Documents on ownership and on the future housing are submitted to the guardianship authority.

Registration usually requires:

• the child's birth certificate and the parents' documents
• title documents for the flat
• a notarised agreement or gift agreement
• consent of the guardianship and trusteeship authority
• an application to register the right in the Legal Cadastre
• a receipt confirming payment of the registration fees

Housing bought using housing payments: what this changes for a child's housing rights

The legal regime of a flat bought using housing payments or mortgage funds differs from an ordinary sale and purchase. The designated purpose of the funds and the terms of the programme may require children to be allocated shares or to retain the right of use, and parents may not dispose of the housing to the child's detriment.

Such rights are set out in the agreement with the bank or in the programme rules: with housing construction savings or a state-supported mortgage, the allocation of shares to children may be required, or disposal may be prohibited without the consent of the guardianship authority. Sale, gift, exchange and pledge are possible only with account taken of the interests of minors.

• Housing bought using housing payments may be pledged to the bank or to the programme operator until fully repaid.
• Allocating a share to a child under the terms of the programme makes the child an owner, and disposing of such a share requires the consent of the guardianship authority.
• When dividing spouses' property, the court checks whether transferring the flat to one of the parents worsens the child's housing conditions.
• The sale or mortgage of a flat where a minor lives is possible only with the prior permission of the guardianship authority.
• Failure to use the payments for their intended purpose gives the right to demand the return of the funds and to have the transaction declared invalid.
• Parents cannot waive obligations under a housing programme to the detriment of the child's right to housing.

The child's interest in housing disputes does not come down to who the owner is: the court looks at whether the child will keep a place to live and will not be left without one after the transaction.

Dividing housing through the court: how the court checks whether the child's right to housing has been violated

When dividing housing, the court checks not the arithmetic of the shares, but whether the minor will retain the ability to use that housing. It takes into account who the child actually lives with and whether their position will worsen.

The existence of other housing is also established: a share, a right of use under a lease, a gift or an inheritance. This does not remove the need to consider the child's interests, but it affects how critical the loss of a share is. Rooms, sanitary standards, proximity to school, clinic and the usual environment are assessed.

The guardianship and curatorship authority is a mandatory participant. The court examines its report on the inspection of housing conditions alongside other evidence, but is not mechanically bound by it.

• who the child actually lives with and whether this will continue after the division
• whether the child has other housing or a right to use other premises
• whether living conditions will worsen: floor area, rooms, infrastructure
• the report of the guardianship and curatorship authority based on the inspection
• the child's opinion, if the child has reached the age at which they are heard
• the possibility of departing from equal shares in favour of the minor

Child maintenance for housing: when support is tied to a flat

Child maintenance for housing is a form of support in which a parent provides not only for current expenses but also for the child's housing needs. This may be payment of rent, transfer of a flat for use, or compensation of living expenses. The obligations arise when the child needs separate housing and the parent has the means to provide it.

Under the Code on Marriage and Family of the Republic of Kazakhstan, parents are obliged to support their children, and the court may award additional housing expenses on top of basic maintenance. The grounds are: the child has no share in housing, the premises are unfit, or a move is necessary. The procedure and the amount of the parent's participation are determined by agreement of the parties or by a court decision.

• Payment of rent for housing for a child living separately from the payer.
• Provision of a flat for free use by the child and the accompanying parent.
• A one-off or regular compensation of expenses for acquiring housing.
• Recovery of additional housing expenses on top of the established maintenance.
• Conclusion of an agreement on participation in the child's housing provision.
• Judicial procedure for determining the amount of housing payments.

The rights of an adopted child to a flat: do they match those of biological children

After adoption, the child is equal in personal and property rights to the adopter's biological children, including in the housing sphere. The child retains the right to use the housing where he or she lives with the adopter and is taken into account when housing is divided between family members.

Housing rights depend on whether ties with biological relatives are preserved. As a general rule, such rights terminate from the moment of adoption, but the law allows them to be preserved if this is stated in the court decision on adoption or follows from a contract or a will.

An adopted child acquires the right to the adopter's flat on an equal footing with biological children: the child is taken into account when determining shares in common property, during privatisation and in inheritance. Information about the adoption is protected by secrecy: it is not disclosed without the adopters' consent, and the fact of adoption is not stated in the child's documents.

• An adopted child is equal in rights to the adopter's biological children, including in relation to housing.
• The right to use the adopter's flat arises for the child from the moment of adoption.
• Rights to the housing of biological relatives terminate as a general rule, except in cases expressly stated in the court decision or a contract.
• The secrecy of adoption closes off information about the child's origin and does not affect the scope of the child's housing rights.
• When housing is divided and in inheritance, an adopted child is taken into account on an equal footing with biological children.

Sale or exchange of a flat with children: which guarantees preserve a child's housing rights

The disposal of housing where a minor lives or holds a share is restricted by law. The sale or exchange of such a property is possible only if the guarantees of the legislation of the Republic of Kazakhstan are observed. The guardianship authority checks whether the child's living conditions will worsen. Without its consent, registration of the transfer of title may be suspended or challenged.

Consent of the guardianship authority is required when a minor's share is being alienated or the child is being deprived of his or her only home. The authority checks whether equivalent or better housing is preserved, taking into account the share, floor area and amenities. The parents submit documents for the existing and the acquired housing, certificates of family composition, and information on registered rights. The conditions may be confirmed by depositing the child's funds into a special account.

• Absence of consent from the guardianship authority for the alienation of a minor's share
• Worsening of the child's housing conditions in terms of floor area, amenities or type of right
• Sale of the child's only home without providing an equivalent replacement
• Exchange of a flat in which the child's share passes into a property of lower value
• Use of the child's funds without depositing them into a special account
• Alienation of housing acquired using state support measures

Documents that confirm a child's housing rights

A child's housing rights are confirmed by documents that depend on the basis of the right. The basic one is the birth certificate: it confirms kinship and the child's legitimate interest in the parents' housing. If a share has been allocated, a title document is needed — a contract, an agreement or a court decision that has entered into force.

Information on registered rights is contained in the Legal Cadastre: an extract shows the owner and the basis and allows encumbrances to be checked. To confirm the child's share, information on the state registration of his or her right is sufficient.

Documents on residence and registration: an extract from the registration book confirms the child's registration and residence at the address. An agreement between the parents on the allocation of a share is drawn up in writing and registered in the established procedure.

• the child's birth certificate
• an extract from the Legal Cadastre on registered rights
• an extract from the registration book at the place of residence
• an agreement on the allocation of a share to the child
• act of the guardianship authority assessing living conditions
• contract or court decision on which the right arose

The set of documents depends on the basis: registration, allocation of a share, a transaction or a housing dispute.

Comparison of ways to protect a child's housing rights: what to choose in your situation

The way to protect a child's housing rights depends on whether there is a dispute between the parents and on whether the housing affects the interests of the minor. The choice is determined by three criteria: agreement between the parents, the nature of the housing (joint or personal) and whether the consent of the guardianship authority is required. Where there is agreement, a notarised agreement on the procedure for using the housing or on the allocation of a share is sufficient; where there is a dispute, the matter is decided by the court.

Allocation of a share is used where the flat is registered in the name of one parent, but the child has a right to a part by operation of law or under an agreement. Applying to the guardianship authority is mandatory in all transactions involving the housing of a minor: without permission, the transactions may be declared invalid. A claim for the division of housing or for the recovery of housing expenses is used where peaceful options have been exhausted and enforcement is needed. The consequences differ: an agreement records the arrangements without court, allocation of a share secures the child's ownership right, the guardianship authority protects interests on disposal, and a claim creates the basis for enforced recovery or division. The decision is taken with account for the child's age, the status of the housing and the position of the other parent.

• whether the second parent consents to the arrangements for use of the housing and the allocation of a share;
• whether the housing is the joint property of the spouses or the personal property of one of them;
• whether the consent of the guardianship authority is required for a transaction involving a minor's real estate;
• whether enforcement is needed — division of the housing or recovery of housing expenses;
• whether the child's right to live in the housing is preserved after a change in family status.

The choice of method depends on whether there is a dispute and on the status of the housing; in transactions involving a minor's real estate, consent from the guardianship authority is mandatory.