2019Da294947 (Counterclaim) Claim for delivery of article jointly owned

Counterclaim Plaintiff,

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

Attorney Song-chul et al.

Counterclaim Defendant

Seoul Central District Court Decision 2019Na134 (Main Office), 2019 Ghana, November 6, 2019

141 (Counterclaim) Judgment

January 14, 2021

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The section for partial common use that is obviously provided only for the common use of some sectional owners among the section for common use of an aggregate building belongs to the co-ownership of those sectional owners [Article 10(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter referred to as the “Aggregate Buildings Act”). In such cases, unless special agreement is reached between the owners who own all or some of the sectional owners, the section for common use of a building is determined by the objective purpose of use according to the structure of the building at the time of the formation of sectional ownership (see, e.g., Supreme Court Decisions 2015Da7212, May 27, 2016; 2018Da217875, Oct. 4, 2018), even if the structure or use status of the section for common use, which is part of the section for common use, is changed later, it does not necessarily constitute the section for partial common use, even if there is no agreement among the owners of all the sectional owners, including the consent to the section for common use.

It is likewise applicable to determining whether the portion is owned by all sectional owners, and whether only some sectional owners, such as the relevant sectional owners, are jointly owned (see Articles 52, 51, and 3(1) of the Aggregate Building Act).

2. The lower court determined that all sectional owners of the apartment complex of this case, on the grounds of the following reasons: (a) the owners of other Dong units in the apartment complex of this case, which is not the 412 apartment complex where the instant rooftop is installed, may have access to the instant rooftop by allowing access to 412 entrances by obtaining approval from the management office; (b) the convenience of landscaping improvement by the Yung field installed on the instant rooftop and the convenience of removal of mobile communication relay areas by the mobile operator installed on the instant seven different buildings in the same complex, which is not 412 dong; and (c) the entire council of occupants’ representatives of the instant apartment complex of this case can be deemed to have made a resolution to create a garden on the instant rooftop, etc. on the premise that the instant rooftop can be deemed to fall under the entire common use area, and therefore, it is evident that only 412 divided owners of the instant apartment complex of this case were offered for common use.

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

A. According to the reasoning of the lower judgment and the record, the instant rooftop is installed to be integrated with the roof of the 412 building, and the 412 divided owners may access the instant rooftop inside or outside the 412 divided ownership, but the other divided owners may not have access to the instant rooftop unless they enter the 412 East underground and the 1st floor entrance with the approval of the management office. The above structural situation seems to change from the situation at the time of sectional ownership as to the entire apartment complex, such as 412 divided ownership.

B. We examine the above facts in light of the legal principles as seen earlier. 412 Dong sectional owners are not only used for the basic purpose of maintaining the safety and appearance of the building, and there is no obstacle to the structure of the building in actively using the rooftop of this case. On the other hand, other sectional owners are allowed access to the rooftop of this case by the 412 gate, and they can access the rooftop of this case with approval from the management office which executes the decision of the council of occupants' representatives. Thus, the apartment complex of this case, which is not the 412 Dong sectional owners and 412 Dong sectional owners, is an essential difference in the possibility of using the rooftop of this case's rooftop of this case's building structure. Therefore, it is obvious that the rooftop of this case was provided for public use only by the 412 Dong sectional owners, which belongs to the 412 Dong sectional owners, and the 4120,000 building sectional owners' co-ownership, which was part of the common use area of this case's rooftop after the establishment of this case's sectional ownership.

4. Conclusion

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 Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee