Whether a right to use a site for a new section of exclusive ownership is recognized in cases where an aggregate building for which a sectional ownership has already been established has already been extended and a new section of exclusive ownership has arisen (negative

Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) provides that a sectional owner’s right to use a site shall follow the disposition of his/her exclusive ownership (Paragraph 1), and that a sectional owner may not dispose of his/her right to use a site separately from his/her exclusive ownership unless otherwise provided by the regulations or notarial deeds (Paragraph 2 and 4). In cases where a constructor of an aggregate building constructs an aggregate building on the site that he/she owns and completes registration of ownership preservation in the name of a constructor with respect to an exclusive ownership, the building owner’s right to use a site constitutes the right to use a site, which is the right of a sectional owner under Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings, to own a section of exclusive ownership. Therefore, barring special circumstances such as the existence of regulations to separately dispose of the right to use a site with respect to a section of exclusive ownership, the right to use a site may not be disposed of separately from his/her exclusive ownership

Therefore, in the event that an aggregate building which has already been established as a sectional ownership has already been extended and a new section for exclusive use has already been established as a right to use a site to own an existing section for exclusive use, and the ownership of a building has become indivisible with the existing section for exclusive use, barring special circumstances, such as regulations or notarial deeds, it cannot be the right to use a site for a new section for exclusive use

Act on the Ownership and Management of Aggregate Buildings (Article 2 subparagraph 6), Article 20 (1), (2), and (4)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff 1 and one other (Attorney Jin-woo, Counsel for the plaintiff-appellant)

Defendant 1 and 2 others (Attorney Yoon Jae-young, Counsel for the defendant-appellant)

Defendant 2 (Appointed Party)

Daegu District Court Decision 2013Na303168 Decided November 26, 2014

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) provides that a sectional owner’s right to use a site shall follow the disposition of his section for exclusive use (Paragraph 1), and a sectional owner may not dispose of his right to use a site separately from his section for exclusive use unless otherwise stipulated by the regulations or notarial deeds (Paragraph 2 and 4). In a case where a constructor of an aggregate building constructs an aggregate building on the site that he owns and completes the registration of ownership preservation in his name as to a section for exclusive use, the building owner’s right to use a site constitutes the right to use a site, which is the right of a sectional owner under subparagraph 6 of Article 2 of the Condominium Act, to own a section for exclusive use. Therefore, barring special circumstances such as where there is a provision that allows a sectional owner to separately dispose of the right to use a site against a section for exclusive use, the right to use a site may not be disposed of separately from the section for exclusive use, and the disposition of disposal of the share in violation thereof shall not be effective (see, e.g., Supreme Court Decision 2004Da7424.

Therefore, in the event that an aggregate building which has already been established as a sectional ownership has already been extended and a new section for exclusive use has already been established as a right to use a site to own an existing section for exclusive use, and the ownership of a building has become indivisible with the existing section for exclusive use, barring special circumstances, such as regulations or notarial deeds, it cannot be the right to use a site for a new section for exclusive use

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. A. Multi-U.D. Co., Ltd. (hereinafter “multi-U.D.”), constructed a building of 4-story size (hereinafter “instant building”) on the land of 616m2 and 296m2 in Daegu-gu ( Address 1 omitted), one owned by himself/herself, on the ground of 616m2 and 296m2, which is one of his/her own ownership, and completed registration of preservation of ownership on June 27, 2008.

B. Multilick DNA registered the instant building as a sectioned, and on July 2, 2008, the registry of each section of exclusive ownership of the instant building was prepared. Accordingly, as to “103” as stated in the judgment below, the registration of a site ownership was completed with “18.1255/12 of the ownership of the site type, the ownership of the site,” and “103/10 of the ownership of the instant building.”

C. After that, the Dazen DNA extended the fifth to the tenth floor of the instant building, and on March 23, 2009, the registration of ownership preservation was completed in the name of multiple dynac with respect to each section of exclusive ownership extended. However, the registration of ownership ownership for each extended section of exclusive ownership was not completed. In such a situation, the Daegu District Court Decision 201Hu6199 on March 10, 201 (including the extended section) rendered a voluntary decision to commence the auction on each section of the instant building (including the extended part).

D. Following the sale, etc. at the above auction procedure, the plaintiffs and 501, the extended part, Defendant 1,502, Defendant 2 (Appointed Party) and Defendant 2,901, Defendant 3, 1001 and 1002 were owned by Defendant 4.

3. Examining the above facts in light of the legal principles as seen earlier, in order to grant the right to use site for a sectioned building extended as above 501, 502, 901, 1001, and 1002, a separate disposition on each part of the shares in the site in the existing partitioned building, such as the above 103, should have been determined by the regulations, etc., and it does not change even if each of the sectional sections of the instant building, including the part of the extension of multi-developed DNA at the time of the extension.

Nevertheless, solely based on its stated reasoning, the lower court rejected the Plaintiff’s claim for restitution of unjust enrichment equivalent to the instant rent against the Defendants, deeming that the right to use a site for a new section for exclusive use arising from extension was established. In so doing, the lower court erred by misapprehending the legal doctrine regarding “a judgment contrary to the Supreme Court’s precedents” as stipulated in Article 3 subparag. 2 of the Trial

4. Therefore, 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.

[Attachment] List of Appointeds: Omitted

Justices Jo Hee-de (Presiding Justice)