2018Da232898 Building

Plaintiff 1 and one other

Law Firm Barun (LLC)

Attorney Kim Yong-woo et al.

Defendant 1 and three others

Law Firm LLC et al., Counsel for the defendant-appellant-appellant

Seoul Central District Court Decision 2017416760 Decided May 1, 2018

February 27, 2020

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

The grounds of appeal are examined.

1. Where several sections, which are structurally divided, are independent buildings, and the object of sectional ownership was to be separated, but each section becomes one building that loses independence as a building by means of removal of walls between the sections, and the section of exclusive ownership is to be integrated, registration of the existing section of exclusive ownership is valid as co-ownership registration corresponding to the ratio occupied by the said section of exclusive ownership among the new buildings created jointly by the division of exclusive ownership (see Supreme Court Order 2009Ma1385, Mar. 22, 2010).

In addition, even if the boundary wall installed between neighboring sections loses the independence in structure and use as a sectioned building due to removal for a certain reason, if the location and size of each sectioned building can be specified, and if it is temporary premised on the restoration as a sectioned building by social norms, and if it is easy to restore it, it cannot be readily concluded that the substance as a sectioned building is lost, and even if it is still valid as a registration indicating that it is a sectioned building (see Supreme Court Order 98Ma1438, Jun. 2, 1999; Supreme Court Order 98Ma1438, Sept. 2, 2008; Supreme Court Order 98Ma1438, Apr. 10, 201). If it is impossible to determine the scope of the object of sectional ownership by structural division, part of the building that fails to meet the requirements as the object of sectional ownership cannot be established, its registration is null and void in itself even if it is registered as a separate partitioned building on the building management ledger and is registered for the purpose of sectional ownership (see Supreme Court Order 2010Ma410, Sept. 10, 4. 294.

2. The court below determined as follows: (a) as the owner on the register of Nos. 1, 2, 10, 34, 58m2, 27m2, and 84m2 (hereinafter referred to as the "building of this case") within the building 15m2, Jung-gu, Seoul, and 15 surface △△△△△-dong, (hereinafter referred to as the "U.S. △△△-dong,") a sectioned building, the above △△ Group (hereinafter referred to as the "building of this case") was the owner of the above △ Group Nos. 28, 67, 68, and 70 of the building of this case; (b) as the owner of the building of this case who was the owner of each of the above stores (hereinafter referred to as the "each of the stores of this case"), the defendants, who was the owner of the building of this case, had an obligation to transfer each of the above parts to the owner of the building of this case, since the indication after remodeling of the building of this case was made to change.

3. However, such determination by the lower court is difficult to accept for the following reasons.

A. According to the reasoning of the lower judgment and the record, the following facts are revealed: (a) △△ Group building, which was completed on October 30, 1958, was determined as a dangerous building as a result of structural safety inspection conducted on May 30, 2002; and (b) was ordered by Seoul Special Metropolitan City, etc. to reinforce the building; and accordingly, (c) the structure of which was built from May 2005 to June 2006, was the steel concrete structure from reinforced concrete structure; (2) the number of floors was the second to four stories; (3) the size of which was 1st to 2nd 04m square meters from 2nd 702nd 75m from 2nd 702 to 925m from 3rd 1st 2nd 1st 2nd 5th 1st 1st 5th 207.

2) As the approval for use of the instant building was not granted even after completion due to the failure of the competent authorities to obtain permission for the instant remodelling construction from the competent authorities, the registration for alteration of indication and the registration for alteration of indication was not made according to the public record of the instant remodelling.

3) As a result, the building ledger and the register on the 15 building portion registered each as the sectional ownership of the building in insurance policy are currently not properly reflected in the current status of the building.

4) As to the current status of the instant building, the appraisal report of the Seoul Central District Court Decision 2009Ma13058 and 2014MaMa1686, which commenced with respect to the instant building, is "the building is a unit building," and is "the building is registered as a unit building, but its location is not specified among co-owners due to the increase or remodeling of two years before the building, and is being operated in the form of sharing profits according to the share of the ownership of the land and the building, and there is a difference in the public records and the current status of the building, "the name of the building is 1, 210" or 1686, and "the actual possession of the building is 1, 208" or "the name of the building is 1, 210" or "the actual possession status of the building is 20, 276, 276, 276, 276 and 278".

B. Examining the above facts in light of the legal principles as seen earlier, it is deemed that △△△, a 15 partitioned building registered as the part of the existing sectional ownership in the building, would have lost the independence in the structure and use of the partitioned building as it did not have a partition wall from the beginning or was removed from the remodeling of this case, and the structure, location and area of the building were changed, and thus, it would have lost its unity in the structure and use as a divided building. Although △△△ after the integration, even if the building was divided into approximately 250 stores and used, the scope of the object of sectional ownership in accordance with the existing sectional ownership cannot be determined based on the structural division of the building, and the said remodeling cannot be said to be temporary or easy for restoration as an existing divided building. Therefore, the registration of division of the building of this case is null and void in itself, and the effect of the registration of division of the building of this case, which was caused by the instant model, is recognized as a co-ownership share corresponding to the ratio of the building in this case.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on the validity of the ownership of a sectioned building and thereby adversely affecting the conclusion of the judgment, solely on the grounds stated in its reasoning.

4. 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 Lee Ki-taik

Justices Kwon Soon-il

Justices Park Jung-hwa

Jeju High Court Justice Kim Jong-soo