[2] Method of determining whether the owner of a section for exclusive use among an aggregate building has expressed his/her intention to divide the part of the general building, and whether the owner of a section for exclusive use is presumed to have been presumed to have been a section for common use in cases where the intention to distinguish the underground floor illegally constructed without obtaining a building permit is not clearly indicated (affirmative)

[2] In the case of a general part of an aggregate building that is used by the owner of a section for exclusive use, the establishment of divided ownership should be carefully determined in consideration of the impact on the legal relationship of the owners of the section for exclusive use or the safety of transaction. The underground floor of a multi-household house is often used by divided owners. However, if an underground floor was illegally constructed without a building permit when constructing a multi-household building, the presumption as a section for common use is consistent with social norms or trade practices, unless the intention of division by a disposal authority is clearly indicated.

1. In order for sectional ownership to be established for one building, there exists one building in an objective and physical aspect, and separate sections of the building should be independent in its structure or use, and the physically partitioned parts of one building should be the object of sectional ownership. Here, division of a building is a kind of legal act in which the specific parts of the building are to be divided into the objects of sectional ownership, and there is no special restriction on the time and method thereof, but the intention of division by the disposal authority should be objectively indicated (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013, etc.).

In general, in the case of a portion of a building that is used by the owner of a section for exclusive use among the aggregate buildings, the establishment of divided ownership should be carefully determined considering the impact on the legal relationship of the owners of the section for exclusive use or the safety of transaction. The underground floor of a multi-household house is often used by sectional owners. However, if an underground floor was illegally constructed without a building permit when constructing a multi-household building, the presumption of divided ownership is consistent with the social concept or trade practice, unless the intention of division of disposal authority is clearly indicated.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. The instant multi-household house is an apartment building constructed on the first floor and the fifth floor above ground, and there are parking lots on the first floor among the above ground floors, and eight households in total on the remaining four floors. The Defendant’s wife, as the owner of the building, newly constructed the said multi-household house and obtained approval for use on or around December 29, 2003, and completed registration of preservation of ownership on each sectional building on January 2004.

B. The underground floor of the instant multi-household house (hereinafter “instant underground floor”) is not included in the total floor area of the building permit. The instant underground floor was extended without permission at the time of new construction of multi-household house, and is not registered in the multi-household building ledger or the registration record of real estate.

C. The Nonparty sold a partitioned building of seven households except for ○○○○○○, and resided with the Defendant, etc. in ○○○○○○○, etc. (in relation to ○○○○, the Nonparty completed the registration of ownership transfer on May 2004) and occupied and used the instant underground floor exclusively for the purpose of warehouse, etc.

D. At the time of the construction of the instant multi-household house, the underground floor was partitioned into walls and divided into two spaces. At the time of the construction of the instant multi-household house, the underground floor was opened without entrance. The underground floor is linked to the above ground floor due to stairs and corridors.

3. The lower court determined that the Defendant newly built and acquired the instant underground floor on the ground that the instant underground floor constitutes the part of the building which is the object of sectional ownership, and dismissed the claim for delivery of the instant underground floor based on the premise that the Plaintiffs, who are the sectional owners of the instant multi-household housing, jointly own the instant underground floor as the common areas of multi-household housing. However, the lower court’s determination cannot be accepted.

(1) The mere fact that the Defendant or the Nonparty, who is his wife, has occupied and used the instant underground floor exclusively by extending the instant underground floor without permission, or that the instant underground floor is not indicated as common areas of multi-household houses in the public records, such as the collective building ledger, is difficult to readily conclude that the intention of the disposal authority’s independent authority to divide the two spaces partitioned except the entire underground floor or stairs and corridor, into the objects of sectional ownership.

(2) The lower court determined that ① designed the instant underground floor for the purpose of two-class neighborhood living facilities (manufacturing facilities) and obtained a building permit with a total floor area of 808.26 square meters, including underground floors, on September 9, 2002; ② upon the recommendation of the competent administrative agency, obtained a building permit with a total floor area of 653.08 square meters, excluding underground floors, on September 8, 2003, based on the sectional act, but also did not constitute grounds for recognizing the sectional act.

In light of the written building permit, the fact that the total floor area of a building in a design is reduced from 808.26 square meters to 653.08 square meters, and it is difficult to find out that the construction permit in September 9, 2002 included the content of newly constructing underground floors as a sectioned building separate from the apartment house in the instant case. Even if there was an intention to distinguish underground floors at the time of the said building permit, in light of the fact that a building permit was re- granted without an underground floor without changing the design on September 8, 2003, at least there is room to deem that the intention to distinguish was not indicated at the time of obtaining the building permit on September 8, 2003, or that the previous intention to distinguish was withdrawn.

4. Nevertheless, the lower court erred by misapprehending the legal doctrine as to the requirements for establishing sectional ownership without failing to exhaust all necessary deliberations as to the act of division, etc., thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal assigning this error is with merit.

5. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)