The acquisition of customary superficies for unregistered or unauthorized buildings

In case where land and a building on the ground belong to the same owner, and the owners of both land or a building become different due to sale and purchase or any other cause, the owner of the building shall have the superficies under customary law for the building acquired from the owner of the land, unless there exists an agreement to remove the building, etc., and the building shall not be necessarily registered, but shall not be superior even if it is an unauthorized building.

Article 366 of the Civil Act

[Plaintiff-Appellant] Defendant 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 15 others, Counsel for plaintiff-appellant)

Plaintiff

Defendant

Seoul Civil District Court Decision 90Na27916 delivered on April 23, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the facts established by the court below, the non-party foundation owned 6.75 percent of the land in this case and the non-party foundation's non-party foundation's non-party foundation's ownership in the name of the plaintiff foundation. The non-party foundation sold the land in this case to non-party 1 on September 26, 1977, and if the non-party 1 was to use the building in this case, it shall pay 200,000 won to the non-party foundation's price. The non-party 1 agreed to remove the building in this case and collect it. On July 11, 1978, the above non-party 1 agreed to the effect that the non-party 1 would be responsible for the removal of the building in this case and the non-party 1 would not purchase the building in this case's name on May 2, 1979, and the non-party 1 would not acquire the legal superficies in this case's name with the consent of the non-party 10 on October 14, 1983.

2. Where land and a building on the ground belong to the same owner, but the owner of the building becomes different from each other due to sale, purchase, or any other cause, barring special circumstances, the owner of the building shall acquire superficies under customary law for the building from the owner of the building, and the building shall not necessarily have to be registered but shall not be a non-exclusive building (see Supreme Court Decision 87Meu2404, Apr. 12, 198). According to the above facts established by the court below, it is the theory that according to the above facts established by the court below, the land and the building on the ground of this case belong to the same owner, and the owner becomes different from each other due to sale, but the defendant cannot be deemed to have acquired the ownership because it did not have acquired the registration of the building of this case, and the above non-party 1 agreed to remove the building of this case to the plaintiff. Thus, the defendant or the above non-party 1 did not have any room for acquiring the legal superficies under customary law.

Therefore, there is no reason to discuss.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)