[1] Legislative purport of Article 18 of the Act on the Ownership and Management of Aggregate Buildings, and validity of the management agreement which allows the special successor of the former sectional owner to succeed to the delinquent management expenses of the former sectional owner (= effective only for the management expenses for the common use area)

[2] Scope of management expenses for common areas succeeded to a specific successor of the former sectional owner of an aggregate building and whether the late payment fees for management expenses for common areas succeeded to the special successor is included in management expenses for common areas succeeded to the special successor (negative)

[3] The case holding that general management expenses, book keeping expenses, entrustment fees, fire insurance premiums, cleaning expenses, repair and maintenance expenses, etc. among management expenses under the management rules of the commercial building shall be included in the management fees for common areas succeeded to the special successor of the former sectional owner

[4] Where a management body of an aggregate building takes measures such as cutting electricity and water for the collection of delinquent management fees, such as management fees for common areas succeeded to by the special successor from the former sectional owner, the case holding that interference with the use by the management body constitutes a tort

[5] In a case where a sectional owner of a building could not use or gain profit from the building due to an act that interferes with illegal use by the managing body, such as a management body of an aggregate building, whether the sectional owner bears the obligation of management expenses incurred during the period (negative)

[1] Article 18 of the Act on the Ownership and Management of Aggregate Buildings provides that a claim held by a co-owner against another co-owner with respect to a common area shall be exercised against the special successor. This is because the common area of an aggregate building is provided for the benefit of all the co-owners, and thus, it shall be jointly maintained and managed, and the claim among the co-owners with respect to the expenses incurred in order to promote the appropriate maintenance and management thereof shall be particularly guaranteed, so special provisions are provided to allow the special successor of the former co-owner to claim against the special successor regardless of his/her intention to succeed. Thus, the part concerning the management fee for the common area in the management agreement that allows the special successor of the former co-owner to succeed to the delinquent management fee for the

[2] The management fee for the section for common use that is succeeded to a specific successor of the former sectional owner of an aggregate building is not only the expenses disbursed for the direct maintenance and management of the section for common use of the aggregate building itself, but also the expenses disbursed for the whole maintenance and management of the aggregate building including the section for exclusive use as well as the expenses that need to be uniformly maintained and managed for the common interest of all the occupants, and if it can be clearly divided into the expenses used for the part that actually and specifically belongs to the individual interest of the occupants, it is reasonable to view that all the expenses are included. Meanwhile, in the event that the payment of management fee is delayed, the late payment fee is a kind of penalty, and the late payment fee is imposed when the former sectional owner succeeds to the management fee for the section for common use that has already been incurred due to the delinquency of the payment by the former sectional owner, and the late payment fee for the section for common use is not included in the management fee for common use that is succeeded to by the special successor.

[3] The case holding that under the management rules of a commercial building, general management expenses, book keeping expenses, entrustment fees, fire insurance premiums, cleaning expenses, repair and maintenance expenses, etc. among management expenses are deemed to fall under the expenses of the nature that should not be spent uniformly due to the need to maintain and manage the aggregate building in order to promote the common interests of all occupants, and unless there is any circumstance to regard them as clearly distinguishable from the expenses used for the portion which actually and specifically belongs to the individual interests of the occupants, it shall be deemed to be the management expenses for the section for common use succeeded to the special successor of the former sectional owner

[4] Where a management body of an aggregate building takes measures such as cutting electricity and water for the collection of delinquent management fees, such as management fees for common areas succeeded to by the special successor, the case holding that interference with the use by the management body constitutes a tort

[5] If a sectional owner of a building could not use or gain profit from the building due to an unlawful obstruction of use, such as taking measures to cut electricity and water as well as to stop the operation of elevators by the managing body of an aggregate building, the sectional owner does not bear the obligation of management expenses incurred during the period.

[1] Article 18 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 17 and 18 of the Act on the Ownership and Management of Aggregate Buildings / [3] Articles 17 and 18 of the Act on the Ownership and Management of Aggregate Buildings / [4] Articles 18, 28 and 42 (1) of the Act on the Ownership and Management of Aggregate Buildings, Article 750 of the Civil Act / [5] Article 17 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court en banc Decision 2001Da8677 Decided September 20, 2001 (Gong2001Ha, 2258)

Plaintiff LLC (Attorney Full-time et al., Counsel for the plaintiff-appellant)

Defendant Management Body (Attorney Lee Jae-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2003Na12498, 12504 delivered on December 12, 2003

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding the scope of management expenses for common areas

Article 18 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") provides that the claims held by the special successor against another co-owner with respect to the common area shall also be exercised against the special successor. The common area of an aggregate building shall be provided for the benefit of the whole co-owners, and it shall be jointly maintained and managed, and the claims between the co-owners with respect to the expenses incurred in order to promote appropriate maintenance and management thereof shall be particularly guaranteed, so it is necessary to allow the special successor to claim against the special successor regardless of the intention of succession. Therefore, the part concerning the management fee for the common area in the management agreement that allows the special successor of the former sectional owner to succeed to the delinquent management fee for the former sectional owner is valid as it is based on the above provision (see Supreme Court en banc Decision 2001Da8677, Sept. 20, 201). Since the management fee for the common area shall be determined in accordance with the nature and specific use of the management fee for the individual co-owner, and it is not necessary to maintain and manage the entire common area as well as the expenses.

However, according to the records, it is recognized that general management expenses, book keeping expenses, entrustment fees, fire insurance premiums, cleaning expenses, repair and maintenance expenses, among management expenses under the management rules of the commercial building of this case constitute expenses of the nature that should not be spent uniformly due to the need to maintain and manage the aggregate building for the common interest of all the occupants. Unless there is any circumstance to view that they can be clearly divided into expenses used for the portion that actually and specifically belongs to the individual interest of the occupants, they shall be deemed management expenses for common areas that are succeeded to the plaintiff, the special successor of the former sectional owner.

Therefore, it is justifiable for the court below to determine that cleaning expenses and maintenance expenses among the management expenses items above shall be succeeded to the plaintiff by deeming them as management expenses for common areas. However, other general management expenses, book keeping expenses, entrustment fees, fire insurance premiums, etc. are for the maintenance and management of both the section for exclusive use and the section for common use. In so doing, the court below erred by misapprehending the legal principles on the scope of the management expenses for common areas that are succeeded to the special successor. Each of the plaintiff and the defendant's grounds for appeal on this part are with merit.

2. As to the establishment of tort due to the defendant's measures such as power supply and water supply and the scope of compensation for the damage

Examining the reasoning of the judgment below in light of the records, the court below acknowledged that "the management rules of the commercial building of this case allow the plaintiff to take measures such as cutting electricity and water when the delinquent management fees were not paid for not less than three months," and the defendant did not err in the misapprehension of legal principles as to the establishment of tort, since the plaintiff acquired the sectional ownership of the eightth floor of the building of this case, the non-party corporation, which was the former sectional owner, demanded the payment of the management fees in arrears and continued to allow the plaintiff to use and make profits from the eightth floor of the whole floor of this case until October 19, 201, and the measures for cutting electricity and water and suspending the operation of elevators were taken against the plaintiff until October 19, 201."

The defendant's argument in the grounds of appeal on this point is that the plaintiff is obligated to succeed the management expenses for common areas among the delinquent management expenses for all sectional owners, and taking measures such as cutting electricity and water in accordance with the management rules to collect such delinquent management expenses, so it does not constitute a tort from the beginning, or at least from the time the plaintiff has failed to pay the delinquent management expenses succeeded for at least three months, it does not constitute a tort due to lawful cutting electricity and water under the management rules.

However, it is obvious that the plaintiff's succession to management expenses for common areas among the management expenses in arrears does not succeed to the legal effect due to the delinquency in management expenses of the former sectional owner, and the plaintiff's acquisition of sectional ownership cannot be deemed as delinquency in the payment of management expenses succeeded by the plaintiff. Thus, maintaining measures such as cutting electricity and water, which had been harmful to the former sectional owner even though the plaintiff succeeded to sectional ownership does not constitute legitimate measures under the management rules. Furthermore, it is insufficient to say that measures such as cutting electricity and water were lawful and not constituted tort, and that such measures were in accordance with the management rules in order to constitute tort. Further, it is limited to cases where it can be deemed as lacking in the social norms in view of various circumstances such as the motive, purpose, means and method of taking such measures, the circumstance leading to the measures, the degree of damage suffered by the tenant, and the degree of damage caused by such measures, and thus, in this case, the plaintiff's refusal to pay management expenses, which were conducted against the plaintiff, constitutes a tort, and the plaintiff's refusal to do so.

On the other hand, in calculating the amount of damages suffered by the plaintiff due to the above tort committed by the defendant, the court below held that "the defendant obstructed the plaintiff's use and profit-making becomes the cause of the plaintiff's succession to the delinquent management expenses of the former sectional owner, and as the plaintiff succeeded to the management expenses for the section for common use among the delinquent management expenses, it is reasonable to limit the ratio of the defendant's responsibility to the ratio of the area occupied by the section for exclusive use out of the total area

However, in light of the fact that the Defendant’s measures such as cutting electricity and water were illegal, which did not meet the legitimate requirements prescribed by the management rules, the circumstances leading to taking measures such as cutting electricity and water, and the degree of damages suffered by the Plaintiff, even considering the circumstances cited by the lower court, it is difficult to deem that limiting the Defendant’s liability for damages as above conforms to the ideology of the Damage Compensation Act, i.e., fair sharing of damages, and there is no clear ground to accept it. Nevertheless, the lower court’s determination that limiting the scope of the Defendant’s liability for damages is reasonable solely based on the circumstances indicated in its reasoning is erroneous by failing to exhaust all necessary deliberations as to the scope of the liability for damages or by misapprehending the legal doctrine on limitation of the

3. As to the burden of management expenses incurred during the period of impossibility of use due to the defendant's obstruction

If a sectional owner of a building could not use or gain profit from the building due to unlawful obstruction of use, such as measures to cut electricity and water and suspend the operation of elevators taken by the management entity, such as a management entity of an aggregate building, he/she shall be deemed not to bear the obligation of management expenses incurred during the period against the management entity.

The lower court’s determination that “the Plaintiff does not bear the obligation of management expenses incurred during the period in which it was impossible for the Plaintiff to use and profit from the eightth floor of the instant building due to Defendant’s tort” is justifiable in accordance with the foregoing legal doctrine.

The Defendant’s argument in the grounds of appeal on this point is that if the Plaintiff does not bear management expenses during the period of impossibility of use due to a tort, the Plaintiff gains the same benefits as receiving compensation for damages caused by the tort from the Defendant and thereby is unjust. However, such benefits are sufficient to consider as a matter of offsetting the amount of damages caused by a tort, and thus, the Plaintiff does not necessarily have to bear the obligation of management expenses. The Defendant’s allegation in the grounds of appeal on this part is without merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)