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1. The defendant shall deliver the real estate listed in the separate sheet to the plaintiff (appointed party).
2. The costs of the lawsuit are assessed against the defendant.
Reasons
1. On May 22, 2011, 1/5 shares of the real estate listed in the separate sheet (hereinafter “instant building”) were inherited from the deceased I, and the Plaintiff (Appointed Party; hereinafter “Plaintiff”) purchased the 1/5 shares of H in the process of compulsory auction and paid in full the proceeds thereof on March 21, 2016. Meanwhile, the Defendant concluded a lease contract with H on the instant building with H, and obtained possession of the building after completing the move-in report on August 9, 2012 by considering the overall purport of pleadings as a whole.
2. An act of the co-owner's lease of the article jointly owned to another person is an act of management of the article jointly owned, and an act of management of the article jointly owned shall be determined by a majority of co-owners' shares in accordance with Article 265 of the Civil Code. Thus, an act of lease by a co-owner who does not constitute a majority of co-owner's shares at least with respect to the remaining co-owners is an act of preservation of the remaining co-owners by
(See Supreme Court Decision 62Da1, Apr. 4, 1962). Therefore, if a third party concluded a lease agreement on real estate jointly owned with a minority equity right holder, such agreement is null and void in relation to another co-owner, and thus, it occupies and uses the jointly owned real estate under an invalid lease agreement with the other co-owner.
(Supreme Court Decision 2010Da569 Decided May 27, 2010). According to the facts and the legal principles as seen earlier, the Defendant occupies the instant building under a lease agreement with H, a co-owner who is not a majority of the co-owners, the said lease agreement is null and void in relation to the Plaintiff and the designated parties D, E, and F, who are other co-owners.
Therefore, the plaintiff can seek the delivery of the building of this case against the defendant as a preservation act of the jointly owned property, and the defendant is the plaintiff of this case.