Unauthorised construction: legalise or demolish

You built a house, an extension or a garage, and now it turns out the documents are not in order or are missing altogether. Or the construction is on a plot that belongs to someone else, or perhaps you changed the designated use of the land without approval. Such situations are common in Almaty: the city is growing, and people add to and rebuild their properties without permits. This is where unauthorised construction comes in.

Dealing with it is harder than it seems. Some believe it is enough to pay a fine and formalise the paperwork retroactively, while others are sure that demolition is inevitable. In reality, everything depends on the plot, the type of rights to the land and whether the object infringes on the interests of others. A mistake at the outset — for example, trying to legalise a building without the consent of the landowner — can lead to lost money and time.

Unauthorised construction in Almaty: when a building is recognised as unlawful

An unauthorised construction is an object erected on a plot that was not allocated for construction in the established procedure, or without the necessary permits, or in breach of urban planning and construction norms. In Almaty, extensions to private houses, second floors, garages and objects on land designated for other purposes are most often classified as such.

Signs of an unauthorised construction: no right to the land, works carried out without notification of the start of construction and installation works and without commissioning of the object, violation of the designated purpose of the plot or of construction norms. What this threatens the owner with — refusal to register the right, inability to sell or pledge the object, fines and ultimately a demand for demolition.

What is considered an unauthorised construction in Almaty is determined by the documents for the land and for the object: if at least one of the conditions is violated, the structure is recognised as unlawful.

• There are no documents for the land plot, or it was allocated for other purposes
• Construction was carried out without notification of the start of works, the object has not been commissioned
• Urban planning, construction or fire safety norms have been violated
• The object was built on someone else's land or on a plot subject to an encumbrance

What rights the owner of an unauthorised construction has

If a structure exists but its status is undetermined, it is important to understand what the owner can count on. Rights to an unauthorised construction do not arise automatically — until a court decision, the object is considered unlawful. Recognition of ownership of an unauthorised construction is possible if the plot lawfully belongs to the developer, the structure corresponds to the designated purpose of the land and does not violate the rights of third parties. If a condition is not met, the risk of demolition is real, and the costs of dismantling will fall on the developer.

The question of an unauthorised construction and the land plot is resolved separately: even with a favourable court decision, the plot remains within its previous boundaries, and neighbouring objects must not suffer. The impact on neighbours is verified through an expert examination — setbacks, insolation, utilities. Determining the status before a dispute with neighbours or the akimat is critical: this determines whether the claim will be for recognition of the right or for demolition. The earlier a legal assessment is carried out, the lower the risk of losing the structure and the investment.

• Recognition of ownership through the court is the main route to legalisation.
• Demolition is a risk if there are no rights to the land or urban planning norms have been violated.
• A dispute with neighbours may lead to a demand to bring the object into compliance.
• The land plot under the construction must be registered to the developer.
• An early assessment of the status reduces the risk of demolition and additional costs.

Unauthorised construction: legalise or demolish — the options

The choice between the two routes depends on whether the construction violates urban planning norms and the rights of others, whether you have documents for the land, and whether the violations can be remedied without harm to neighbours and utilities. If the non-compliances are remediable and you are ready to correct them, it is realistic to legalise an unauthorised construction through the court. If the construction poses a threat to life and health or violates the rights of others, demolition of the unauthorised construction remains — voluntary or by court decision with enforcement through a court enforcement officer. On someone else's plot, the court may recognise ownership, but only with the consent of the land owner and with payment of compensation to them.

Before choosing, assess three circumstances: the status of the land and its designated purpose, the compliance of the construction with construction and fire safety norms, and the presence of objections from neighbours and the akimat. Understanding how to legalise an unauthorised construction in your situation saves time: an attempt to legalise clearly irremediable violations only drags out the process and increases the costs of expert examinations. The dilemma of whether to legalise or demolish an unauthorised construction is decided by the facts, not by the owner's wishes.

The court may order the object to be brought into compliance with the norms instead of demolition.

Unauthorised construction and the court: how the dispute proceeds

In court, a dispute over an unauthorised construction most often proceeds on a claim for recognition of ownership of the unauthorised construction. It may be filed by the person who erected the structure on a plot belonging to them, or by the landowner if the structure was created by another person. The court checks whether the object corresponds to the designated purpose of the plot, complies with construction, sanitary and fire safety norms, whether it violates the rights of third parties and whether it poses a threat to life and health.

As a rule, a construction and technical expert examination is appointed, which answers questions about safety and whether the structure can be preserved. Court practice on unauthorised construction in Kazakhstan shows that the outcome depends on the evidence, and a typical mistake is to collect it after filing the claim or to limit oneself to photographs without documents for the land.

• Specialists' conclusions on compliance with the norms.
• Title documents for the plot.
• Written explanations from neighbours and interested persons.
• Technical passport and survey results.

What documents are needed for an unauthorised construction

To collect documents for legalising an unauthorised construction, one starts with the title documents for the land: a sale and purchase agreement, a decision of the local executive body on granting the plot, an act on the right of private ownership of a land plot or a temporary land use (lease) agreement. Then a technical passport for the unauthorised construction is ordered — it is produced by the State Corporation "Government for Citizens" upon the owner's application, and it also records the actual dimensions and materials.

Design documentation and conclusions — on compliance with construction, sanitary and fire safety norms, on utility networks — are issued by design organisations and specialised services. If some of the papers are missing, the court will not see that the object is safe and is placed on a plot that permits such construction, and legalising the structure will become much more difficult.

• title documents for the land plot
• technical passport for the unauthorised construction
• design and conclusions on compliance with the norms
• information on utility networks and communications

The absence of any of these documents will be assessed by the court against you.

Unauthorised construction: typical mistakes that prevent legalisation

One of the most costly mistakes in unauthorised construction is to start work without a permit and without rights to the land, and then spend years looking for a way to fix it. The court assesses not only the structure itself but also the conduct of the developer: if the designated use of the plot does not permit capital construction and instructions are ignored, the chances of legalisation fall.

Trying to resolve everything through the akimat without going to court also rarely works: only a court can recognise ownership of an unauthorised construction, while the akimat may only issue an opinion or refuse. The typical mistakes in unauthorised construction that prevent legalisation are as follows:

• Construction was started without a permit and without formalised rights to the land.
• The designated use of the land has not been changed to match its actual use.
• Instructions to suspend work or to demolish have been ignored.
• Legalisation is being attempted through the akimat, bypassing the court.

Unauthorised construction: what to do next and where to apply

First, order a certificate of registered rights (encumbrances) to immovable property from the Legal Cadastre and a technical passport for the building and the plot, then apply in writing to the district akimat — for a decision on the land plot and approval to retain the building. If the akimat refuses or does not respond, the next step is a court claim; a building can be legalised only if the plot belongs to you on a lawful basis, the building matches its designated purpose and does not infringe the rights of neighbours.

Support at this stage is provided by a lawyer for unauthorised construction: they assess the prospects, prepare the claim and work with expert examination. It is worth finding a real estate lawyer in Almaty before an order is issued or an akimat representative comes to the plot: that way you will have time to collect the documents and give explanations. Where to apply regarding unauthorised construction — to the akimat or to court — depends on your goal and the stage of the dispute.

• Title documents for the land and the building
• Technical passport and survey report
• Written refusal of the akimat or evidence of inaction
• Documents on neighbours' rights and the absence of violations

The main conclusion is simple: legalising an unauthorised construction is realistic only when you have a right to the land, the building matches its designated purpose and does not infringe the rights of others. If even one condition is not met, the court will most likely order the object to be demolished.