Whether the section for common use of an aggregate building is subject to acquisition of ownership by prescription (negative)

Article 1 and Article 2 subparags. 1 and 3 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the “Aggregate Buildings Act”) provide that each part of a building which is divided in structure can be independently used as an independent building may be the object of ownership under the provisions of the Aggregate Buildings Act. Since each part is the sectional ownership right, each part of which is the object of sectional ownership, and each part of the building which is the object of sectional ownership shall be the sectional ownership. The section for common use shall not be the object of sectional ownership unless it is changed into an exclusive ownership. Although the section for common use belongs to all sectional owners (Article 10(1) of the Aggregate Buildings Act), the section for common use may not be the object of sectional ownership unless it is changed into an exclusive ownership (Article 10(1) of the Aggregate Buildings Act). Article 13 of the Aggregate Buildings Act provides that the share of co-owners in the section for common use is only a disposal of the section for exclusive use, and it shall not be separately disposed of from the section for exclusive use. In addition, in order to change to the section for common use, it shall not be recognized as an acquisition of the section for common use.

Articles 1, 2 subparag. 1 and 3, 10(1), 13, and 15 of the Act on the Ownership and Management of Aggregate Buildings

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

General Trade Co., Ltd. (Attorney Senior Ro-soo, Counsel for defendant-appellant)

The list of the Defendant and the Intervenor succeeding to the Defendant is as shown in the attached Table (Law Firm Central, Attorney Park Jin-jin, Counsel for defendant-appellant

Seoul Southern District Court Decision 2009Na11599, 11605 decided August 18, 201

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

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

1. As to the ground of appeal as to the primary claim

Article 1, Article 2 subparags. 1 and 3 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) provides that if several sections for common use among the sections for exclusive use can be independently used as independent buildings, each section may be the object of ownership under the provisions of the Aggregate Buildings Act. Each part shall be the sectional ownership right, and each part of the building which is the object of the sectional ownership right shall be the sectional ownership, and that section for common use shall be the object of sectional ownership unless it is changed into the section for exclusive use. The section for common use is owned by all sectional owners (Article 10(1) of the Aggregate Buildings Act), but the section for common use shall not be the object of sectional ownership unless it is changed into the section for exclusive use (Article 10(1) of the Aggregate Buildings Act). Article 13 of the Aggregate Buildings Act provides that the share of co-owners in the section for common use shall only follow the disposal of that section for exclusive use, and shall not be separately disposed of from that of the section for exclusive use. In addition, in order to change to the section for exclusive use, the purport of the section for common use shall not be approved by the ownership.

The lower court, based on its employed evidence, rejected the Plaintiff’s resolution to the effect that “The instant apartment construction project is jointly implemented by the Public Official Pension Management Corporation, the Mapo-gu Housing Association, and the Mapo-gu Housing Association (hereinafter “the instant apartment construction project”) and completed the instant apartment construction project on February 1986, and that the Plaintiff’s ownership can be acknowledged as the condition that Nonparty 1 bears ownership of KRW 10,000,000,000 (hereinafter “the instant apartment construction project”). The Plaintiff’s housing association purchased the instant apartment construction project on March 11, 1986, constructed the instant apartment on 10,000,000 and made the instant apartment in its sloping roof to obtain approval from the competent government office, and that the instant apartment construction project was established on the sloping roof. The Plaintiff’s ownership was not registered on March 11, 1986, and the Plaintiff’s ownership registration was not completed on the ground that the instant apartment construction project was not completed with respect to the instant apartment construction section (hereinafter “the instant apartment construction project”).

According to the records, prior to the resolution of the general meeting of this case, the collective housing association of this case appears to have committed an act of division by objectively expressing the intention of division to make the apartment of this case newly constructed in the future as a sectioned building through the application for building permission for the apartment of this case or the sale by each household, and the reason why the greenhouse of this case was established, the reason why the greenhouse of this case was made, the fact that the greenhouse of this case was deemed to have been made for the joint use by the occupants, and that the greenhouse of this case was not included in the object of sale, it is reasonable to view that there was no act of division to make the greenhouse of this case as the object of sectional ownership at the time of the above act of division as the object of sectional ownership. Therefore, even if the greenhouse of this case was independent in structure and use,

Furthermore, in order to change the section for common use of a building to the section for exclusive use, the consent of the sectional owners under Article 15 of the Multi-unit Building Act should be obtained in addition to having independence in structure and use of the section for common use. In a case where a sectional ownership relationship is established, it is naturally constituted with all sectional owners, and the sectional owners refer to the person who has acquired sectional ownership (registered as sectional owners on the register). However, in special circumstances, such as where a buyer fails to complete the registration of ownership transfer due to the reasons on the part of the buyer even though the buyer paid the sale price in full, it shall be deemed as corresponding to the sectional owners (see Supreme Court Order 2004Ma515, Dec. 16, 2005). Members of the instant multi-unit building association cannot be seen as the one of the sectional owners who completed the registration of ownership transfer to the relevant household on or before Apr. 30, 1986, the general meeting resolution of this case cannot be seen as the one of the sectional owners at the general meeting resolution of this case.

Ultimately, according to the legal principles as seen earlier, the greenhouse of this case, which is a common part of an aggregate building, cannot be subject to acquisition by prescription.

Therefore, the judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there are no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on

2. As to the ground of appeal on the conjunctive claim

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below is just in rejecting the plaintiff's assertion as to the conjunctive claim that the plaintiff acquired the right to use, benefit from, use, benefit from, or dispose of the greenhouse of this case granted to the non-party 1 by the resolution of the general assembly of this case, since the resolution of the general assembly of this case was made by the members of the multi-family housing association of this case, which is the main body, at the stage prior to the establishment of the sectional ownership relationship for the apartment of this case before the establishment of the sectional ownership relationship for the apartment of this case, and thus, it cannot

3. Conclusion

Therefore, all appeals are 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 on the bench.

[Attachment] List of the Defendant and the Intervenor to the Defendant: omitted

Justices Min Il-young (Presiding Justice)