Where a reconstruction association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents makes a claim for sale to a person who owns only a parcel of land or building within a "area which is not a housing complex", whether it shall undergo the highest procedure prescribed in Article 48 (1) of the Act on the Ownership and Management of Aggregate Buildings (affirmative

In implementing a housing reconstruction project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), if only a parcel of land is owned within a housing complex and no party is the other party to the consent to the establishment of an association, the highest procedure provided for in Article 48(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Act on the Ownership and Management of Aggregate Buildings”) is not legally interested. Thus, a claim for sale against such person shall not be deemed unlawful or invalidated even if he did not go through the highest procedure prior to the request for sale. However, in order for a reconstruction association located within a housing complex to obtain an authorization for the establishment of a partnership, it shall obtain the consent of the owner of land or building located within a housing complex pursuant to Article 16(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, unlike a person who owns only land within a housing complex.

Articles 2 subparag. 7 and 9(b), 16(3), 19(1), and 39 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 8785, Dec. 21, 2007); Article 48(1) of the Act on the Ownership and Management of Aggregate Buildings

Supreme Court Decision 2006Da56572 Decided February 29, 2008

Suwon 1 Housing Reconstruction and Improvement Project Association (Law Firm Square, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

Defendant 1, et al., the party taking over the lawsuit of the deceased Nonparty

Daegu High Court Decision 2009Na1253 decided October 23, 2009

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

The grounds of appeal are examined.

1. (1) The lower court maintained the first instance judgment dismissing the Plaintiff’s right to claim sale of the Plaintiff’s right to claim sale against the Plaintiff, which did not consent to the establishment of the association, on the ground that, inasmuch as the Plaintiff, who is a housing reconstruction improvement project association under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; hereinafter “former Act”) only owns the land within the rearrangement zone, and the Plaintiff’s right to claim sale against the Plaintiff, which did not consent to the establishment of the association, without undergoing the peremptory procedure stipulated in Article 39 of the former Act, within 2 months from the date of the establishment registration of the association, the Plaintiff exercised the right to claim sale within 2 months from the date of the registration of the establishment of the association, but the Plaintiff did not exercise the right to claim sale of the Plaintiff’s right to claim sale of the Plaintiff’s land within the rearrangement zone under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and the Plaintiff’s right to claim for sale.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. As to the development of Defendant Bohovah,

(1) Article 19(1) of the former Act provides that members of a rearrangement project (excluding a rearrangement project implemented by the head of a Si/Gun or the Korea Housing Corporation, etc.) shall be “owners of land, etc.” In the case of a housing reconstruction project, “owners of land, etc.” shall be “owners of buildings and appurtenant land prescribed by Presidential Decree and the owners of appurtenant, welfare facilities and the land attached thereto located in a rearrangement zone other than a rearrangement zone,” and Article 16(3) of the same Act provides that “the owners of buildings and appurtenant lands prescribed by Presidential Decree and the owners of appurtenant, welfare facilities and the persons who are owners of appurtenant, etc.,” and Article 16(3) of the same Act provides that when an area other than a housing complex is included in a rearrangement zone, at least 4/5 of the owners of land or buildings within an area other than a housing complex and at least 2/3 of the land area shall obtain consent of owners of land within a rearrangement zone. Article 2 subparag. 7 of the same Act provides that “the housing complex and appurtenant and welfare facilities” shall be entrusted with the approval of a project plan.

Meanwhile, Article 39 of the former Act provides that a project implementer may file a claim for sale by applying mutatis mutandis the provisions of Article 48 of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”) to the land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply) who does not consent to the establishment of an association pursuant to Article 16(2) and (3) while implementing a housing reconstruction project, and Article 48(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”), and Article 48(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”) shall give written notice to the sectional owners (including his/her successor) who did not consent to the resolution on

(2) In full view of the above provisions, in a case where only a parcel of land is owned in a housing complex for the implementation of a housing reconstruction project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and is not the other party to the consent to establish an association, it is not legally interested in the highest procedure stipulated in Article 48(1) of the Act on the Construction and Management of Aggregate Buildings. Thus, in a case of a claim for sale against such person, even without the highest procedure prior to the request for sale, the claim for sale against such person cannot be deemed unlawful or invalidated (see Supreme Court Decision 2006Da56572, Feb. 29, 2008). However, in order for a reconstruction association to obtain authorization for the establishment of an association, a parcel of land or building owner located in a housing complex within a housing complex shall obtain the consent of the owner of the land which is not a housing complex pursuant to Article 16(3) of the former Act. Therefore, it is reasonable to deem that such person has a legal interest in the highest procedure stipulated in Article 48(1) of the Act.

According to the facts acknowledged by the court below based on the evidence adopted by the court below, it can be known that Defendant Boh Development owned the land in the "area which is not a housing complex" which is included in the rearrangement zone for the housing reconstruction project of this case. In such a case, the court below should have judged the propriety of the claim for transfer registration of ownership in this case by examining whether the plaintiff had made a claim for sale of the land within the period of reply and the period of exercise of the claim for sale in accordance with the above legal principles after going through the due peremptory procedure stipulated in Article 48 (1) of the Multi-Family Building Act. However, the court below decided that it is not necessary to take the highest procedure for Defendant Boh Development, a landowner, and dismissed the claim for sale by the plaintiff association on the ground that the plaintiff did not exercise the claim for sale within 2 months from the completion of the establishment registration of the association. Thus, the court below erred in the misapprehension of legal principles as to the exercise of the claim for sale and its highest procedure

B. As to the remaining Defendants

Article 39 of the former Act provides that a project implementer may claim the sale of the land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply) who did not consent to the establishment of an association under Article 16(2) and (3) while implementing a housing reconstruction project by applying the provisions of Article 48 of the Act on the Ownership and Management of Aggregate Buildings to the land and buildings of a person (including a person who owns only a building or land; hereinafter the same shall apply). As such, a partnership project implementer in a housing reconstruction project is established by the authorization and registration of the establishment of the competent administrative agency, and the consent of the owners, such as the land for the establishment of the partnership (hereinafter referred to as the "resolution on the establishment of a partnership") is one of the procedural requirements necessary for taking an administrative disposition, such as an authorization on the establishment of the partnership, and even if there is a defect in the establishment resolution, the partnership project association still has the status as a project implementer (see Supreme Court Decision 2008Da60

Therefore, in cases where a reconstruction improvement project association files a lawsuit seeking the implementation of the procedure for ownership transfer registration by exercising the right to demand sale against a person who did not consent to the establishment of the association, the person who did not consent to the establishment of the association in the litigation procedure can contest the legitimacy of the exercise of the right to demand sale based on the fact that the matters regarding the burden of expenses determined by the resolution of the association are unlawful due to lack of specification, it is insufficient to say that the resolution of the association establishment is not effective due to such circumstance. Furthermore, the authority to establish the association is legally revoked or its defect is so serious and clear that

Nevertheless, under the premise that the right to claim sale of this case takes effect only when the establishment resolution of the association is valid, the court below dismissed the plaintiff association's claim for sale on the ground that the matters concerning the share of expenses as determined by the establishment resolution of the association of this case are not effective because the right to claim sale of this case is not legally revoked or automatically null and void. This judgment of the court below is erroneous in the misunderstanding of legal principles as to the exercise of the right to claim sale of the housing association, which affected the conclusion of the judgment. The ground of appeal

3. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the judgment of the court below is reversed, 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 Yang Sung-tae (Presiding Justice)