FORM OF TRANSACTION AND STATE REGISTRATION OF RIGHTS TO REAL ESTATE PROPERTY
Keywords:
transaction, oral transaction form, simple and qualified transaction form, notarization of transactions, real estate transactions, state registration of rights and encumbrances, court decision on a real estate transaction, receipt, alienation of real estate, gift, annuities, contracts of saleAbstract
The relevance of the topic of the proposed article is that, in spite of the settlement of legislation on the form of the transaction and state registration, in practice, starting from the household level, up to the resolution of disputes by professional lawyers in the courts, there is a constant violation of the requirements of the legislation by transaction participants and incorrect application of the norms law enforcement. Judicial practice, like a litmus test, clearly reflects the negative phenomena of legal reality that we called, in connection with which the author's theses and conclusions were based on specific cases considered by the courts.
The article analyzes the current legislation of the Republic of Kazakhstan regarding the regulation of the grounds for the use of mandatory simple and qualified written form of transactions, provides explanations on the methods of concluding oral transactions; according to the methodology for determining transactions requiring a mandatory simple written form.
Despite the small number of types of transactions that require mandatory notarization, in practice, many problematic issues are associated with the lack of knowledge of subjects of civil legal relations and law enforcement on this issue. In this regard, the author has compiled a list of transactions requiring a mandatory notarial form and proposed to include such a list in the Law of the Republic of Kazakhstan “On Notaries”.
A significant part of the work is devoted to a formal legal analysis of the legislation on the form of transactions with real estate and state registration of rights and encumbrances arising from such transactions. Based on the analysis of judicial practice and comparative legal analysis with the legislation of the Russian Federation, shortcomings in legal regulation in this matter were identified, specific measures to improve the legislation were proposed, including the recommendation to clarify the rules on the conclusion of transactions on the alienation of real estate in the form of a single document signed by the parties to the transaction.