In case where the truster’s sectional ownership was transferred to the trustee due to the reason of the trust and the third party acquired the trust property in succession by the disposal of the trust property under the trust contract, whether the trustee and the third party acquisitors take over the delinquent management expenses for common areas by each former sectional owner (affirmative in principle), and whether the same applies to the case where the truster bears the responsibility for the payment of the management expenses for the trust property in the trust ledger recognized as part of the registration

In light of the legislative purport of Article 18 of the Act on the Ownership and Management of Aggregate Buildings, the succession of management expenses for common areas and the legal principles of trust, etc., it is reasonable to deem that the registration of transfer of ownership has been completed in the name of a third party purchaser due to the disposal of trust property under a trust contract and the registration of trust has been cancelled. In the event that the truster's sectional ownership has been successively transferred in the order of the third party purchaser, the trustee and the third party purchaser, who are the special successor of each sectional ownership, concurrently take over the delinquent management expenses for common areas and the delinquent management expenses for each former sectional owner, unless there are special circumstances. Furthermore, even if the trust ledger recognized as part of the registration, which includes the fact that the truster bears the responsibility for the payment of the management expenses for the trusted real estate, the third party purchaser shall be deemed to have taken over the delinquent management expenses

Article 18 of the Act on the Ownership and Management of Aggregate Buildings, Article 454 of the Civil Act, Article 2 of the Trust Act, Article 81 (1) and (3) of the Registration of Real Estate Act

Han-sung Asset Management Co., Ltd. and one other (Law Firm Pyeongtaeksan et al., Counsel for the plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Daeho, Attorneys Park Dong-dong et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 2017Na2016806 decided September 27, 2017

The part of the lower judgment against the Plaintiffs on the claim for the delinquent management fee for the section for common use by November 2006 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are all dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 18 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) provides that “The co-owner may exercise against another co-owner any claim regarding a common area against the special successor.” This is a special provision which provides that the common area of an aggregate building shall be jointly maintained and managed as it is provided for the benefit of the whole co-owners, and it is necessary to guarantee in particular the co-owner’s claim against the expenses incurred in order to properly maintain and manage the common area. As such, 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 (see, e.g., Supreme Court en banc Decision 2001Da8677, Sept. 20, 201).

Furthermore, in case where the sectional ownership has been assigned in sequential order, each special successor shall be deemed to have taken over the obligations of the former sectional owner. Thus, not only the final special successor who currently holds the sectional ownership but also the previous sectional owners shall bear the delinquent management expenses liability for the common area regardless of whether the former sectional owner has the sectional ownership (see Supreme Court Decision 2006Da50420, Dec. 11, 2008, etc.).

Meanwhile, as a trust under the Trust Act requires a trustee to manage and dispose of the property right for the purpose of trust by transferring a specific property right to a trustee or disposing of it, if the trustee completes the registration of ownership transfer in the future, the ownership is entirely transferred to the trustee, and the ownership is not reserved against the truster in the internal and external relationship with the truster (see Supreme Court Decision 2000Da70460, Apr. 12, 2002, etc.).

In light of the legislative purport of Article 18 of the Aggregate Buildings Act, the succession of management expenses for common areas, and the legal principles of trust, it is reasonable to deem that the trustee has acquired the ownership registration in the future due to the trustee's disposal of trust property under a trust contract and the registration of trust has been cancelled, and the truster's sectional ownership right has been successively transferred to the trustee, the trustee and the third acquisitor, who are the special successor of each sectional ownership, concurrently take over the delinquent management expenses for common areas of each former sectional owner, unless there are special circumstances. In addition, even if the trust ledger recognized as part of the registration includes the fact that the truster bears the responsibility for the payment of management expenses for the trust property for the trust property, the third acquisitor shall be deemed to have taken over the delinquent management expenses for common areas incurred during the ownership period of the previous sectional owner, regardless of such fact.

B. The following facts are revealed in full view of the reasoning of the lower judgment, including the reasoning of the first instance judgment partially admitted by the lower court and the evidence duly admitted.

(1) On February 3, 2006, Scco Co., Ltd. (hereinafter “Scco”) entered into a real estate management trust agreement with the Korea Asset Trust Co., Ltd. (hereinafter “Korea Asset Trust”) on the instant land and the shopping mall newly constructed on its ground (hereinafter “instant trust agreement”). On February 6, 2006, the instant trust agreement entered into a separate registration procedure for the shopping mall as an aggregate building. At the same time, the registration of transfer was completed on February 3, 2006 for the portion 1,613 of the instant shopping mall’s exclusive ownership in the name of the trustee asset trust.

(2) According to Articles 9(1) and 14(1) of the Trust Contract of this case, the truster is obliged to bear the management expenses of the shopping mall of this case, which is the real estate trusted. The trust contract of this case attached to the trust application of this case was incorporated into the trust ledger at the time the trust registration of this case was completed and bound into the register of the building of this case.

(3) A future comprehensive industry corporation (hereinafter “Smi comprehensive industry”) was appointed as a manager of the shopping mall of this case on February 2, 2006 through July 2006, but from November 2006, it did not perform the management of the shopping mall of this case.

(4) Article 6 of the instant management rules provides that “The obligation to bear expenses, etc. incurred in the maintenance of buildings and business management-related common interests” shall be one of the obligations of sectional owners, and Article 7(1) provides that the owners on the register shall automatically succeed to the rights and obligations of sectional owners stipulated in Article 6.

(5) In around 2013, Korea Asset Trust proceeds with the public auction procedure for the instant 747 sections of exclusive ownership at the request of the beneficiaries of the instant trust agreement. The Defendants completed the registration of ownership transfer with respect to the instant 747 sections of exclusive ownership by winning a bid or a negotiated contract on June 2014, and the said registration was cancelled due to the disposition of trust property.

(6) The Plaintiffs acquired each acquisition of each of the following: (a) and each of the claim for the return of the agreed amount or the borrowed amount for the future comprehensive industry.

C. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendants, as the special successor of the 747 sections of this case, take over the liability for the management expenses for the common use area between Switzerland and the Korea Asset Trust. This does not change on the original trust register recognized as part of the instant trust registration, stating that the truster bears the responsibility for the payment of management expenses for the trusted real estate. Therefore, the Defendants should be deemed liable for the delinquent management expenses for the common use area up to the part of November 2006 for the future comprehensive industry.

Nevertheless, solely based on its stated reasoning, the lower court rejected the Plaintiffs’ assertion that the Defendants succeed to the obligation to pay management expenses for common areas up to November 2006, which was unpaid. In so determining, the lower court erred by misapprehending the legal doctrine on the succession to the obligation to pay management expenses for common areas of an aggregate building, thereby adversely affecting the conclusion of the judgment.

2. As to the grounds of appeal Nos. 2 and 3

The lower court determined that: (a) from November 2006, when the future comprehensive industry was closed, the shopping mall of this case, including the instant 747 sections of exclusive ownership, was practically renounced without performing management duties as a custodian.

The gist of the allegation in the grounds of appeal in this part is that “The status of the manager of the future comprehensive industry was maintained until November 2015, and the future comprehensive industry was engaged in the management work even after December 2006, and the future comprehensive industry was in the status of the manager at the time when the Defendants acquired ownership.” This purport is to dispute the preparation of evidence and the fact-finding, which fall under the exclusive authority of the fact-finding court, and it cannot be a legitimate ground of appeal.

3. As to the fourth ground for appeal

The ground of appeal that there was no preserved claim by the plaintiffs which judged that the court below did not exist partially, is also disputing the fact-finding by the court below, and it cannot be a legitimate ground of appeal.

4. Conclusion

Therefore, among the judgment below, the part on the claim for management expenses for common areas by the part on November 2006 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim So-young (Presiding Justice)