Samsan District Housing Association (Law Firm Future, et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others

April 11, 2019

Changwon District Court Decision 2018Da50546 Decided October 25, 2018

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants shall receive money from the Plaintiff at the same time, and shall carry out the registration procedure for transfer of ownership based on the sale of each corresponding date on each of the pertinent real estate stated in the “the date of conclusion” column of the attached list of “real estate” column of the same list to the Plaintiff, and deliver the pertinent real estate to the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims against the defendants are dismissed.

1. Basic facts

A. On April 3, 2017, the Plaintiff is a regional housing association that was established with the authorization of the establishment under the Housing Act by making one unit of housing in the Kimhae-si ( Address 2 omitted) from the Kimhae-si market as a prospective housing construction site.

B. On March 26, 2018, the Plaintiff obtained approval of the project plan on the housing construction project (hereinafter “instant project approval”) that constructs apartment houses (hereinafter “instant housing construction project”) on a parcel other than 247 parcel from the Kimhae-si, Kimhae-si, and the Kimhae-si announced the approval of the instant project plan on March 30, 2018.

C. Since the approval of the instant project plan, there was a change in the lot number, size, etc. in the process of dividing the boundary line of land, and as a result, Kimhae-si changed the site location to the total area of 82,267 square meters on July 25, 2018 ( Address 2 omitted) and 220 lots (hereinafter “instant project site”), and the site area of the housing construction site to the total area of 82,267 square meters.

D. The housing construction site area of the project site of this case (limited to the area to be incorporated into the housing site except road size, buffer green belt area, etc.) consists of 70,575 square meters in private land, including each relevant real estate listed in the column for “real estate” listed in the separate sheet owned by the Defendants (hereinafter collectively referred to as “each real estate of this case,” and when referring to individual real estate, hereinafter referred to as “the instant real estate”) (=3,990 square meters + 66,584.9 square meters; hereinafter referred to as “the instant private land”) and State/public/public/public/owned land (hereinafter referred to as “instant state/public/public/public land”). The specific contents are as follows.

Table 3,990.14.85 Plaintiff’s real estate to acquire the Plaintiff’s ownership of real estate without ownership 66,584.94 80.94 2 State-owned and public land 11,692.21 totaled 82,267.10

E. Meanwhile, the Plaintiff had been holding several consultations with the Defendants regarding the sale of each of the instant real estate since before and after the approval of the instant project plan. On April 19, 2018, immediately after the approval of the instant project plan, the Plaintiff sent to the Defendants a certificate of content verification and interview with the Defendants to sell each of the instant real estate at a reasonable price since the approval of the instant project plan was obtained with respect to the instant project site as of March 26, 2018, and continued on April 20, 2018, with the Defendants having reached the above content certification to the Plaintiff on April 20, 2018.

[Ground of recognition] The fact that there is no dispute, Gap's entries in Gap's 1, 5, 6, 9, 11 through 17, 20, 21, 222, and the purport of the whole pleadings

2. Relevant statutes;

The provisions of the Housing Act relating to this case are as follows:

(1) A person who intends to obtain approval for his/her housing construction project plan pursuant to Article 21 (1) or (3) included in the main sentence of this Act shall secure ownership of the relevant housing construction site: Provided, That this shall not apply where he/she falls under any of the following cases: 1. Where he/she fails to secure the ownership of at least 80 percent of the relevant housing construction site (in cases of the housing association (excluding any housing remodeling association) which implements a project jointly with a registered project operator pursuant to Article 5 (2), referring to the ownership of at least 95 percent of the relevant housing site area; hereafter the same shall apply in this Article, Articles 22 and 23) and secure the right to use the relevant housing site after obtaining a request from the owner of the relevant housing construction site to sell or transfer the relevant land, and where he/she fails to secure the ownership of at least 10 percent of the relevant housing site subject to a request for sale from the owner of the relevant housing construction site (where he/she fails to secure the ownership of the relevant housing site subject to a request for sale under Articles 222 and 23 (where he/Do Governor fails to sell the relevant housing site:

3. The parties' assertion

A. The plaintiff's assertion

After obtaining the approval of the project plan of this case, the Plaintiff and the Defendants agreed to purchase each of the instant real estate for at least three months, but no agreement was reached, thereby exercising the Defendants’ right to demand sale under Article 22(1) of the Housing Act in accordance with the application for alteration of the purport of the claim and the cause of the claim as of August 28, 2018. As such, the Defendants are obliged to take procedures for the registration of ownership transfer and deliver each of the instant real estate to the Plaintiff simultaneously with receiving the payment from the Plaintiff.

B. The defendants' assertion

① The Plaintiff and Nonparty 1 did not meet the requirement for exercising the right to demand sale under Article 22(1)1 of the Housing Act that the Plaintiff would secure the right to use more than 95% of the housing construction site, taking into account that the sales contract on two lots (the total area exceeds 1% of the housing construction site area; hereinafter “existing Nonparty 1”) was cancelled by Nonparty 1, and the Plaintiff failed to secure the right to use more than 809 square meters (the address 4 omitted), which is the State-owned and public land, Kimhae-si, and the Plaintiff did not meet the requirement for exercising the right to demand sale under Article 22(1)1 of the Housing Act that the Plaintiff would secure more than 95% of the housing construction site. ② In order for the Plaintiff to exercise the right to demand sale under Article 22(1) of the Housing Act, the Plaintiff did not undergo a specific and substantial sales consultation with the owner of the relevant housing construction site, and ③ the Plaintiff did not reflect the market price at the time of the request for sale.

4. Determination

A. Whether the plaintiff secured the right to use

1) Part of private land

Comprehensively taking account of the purport of the entire argument in the statement in the Evidence Nos. 22 and 23, the Plaintiff filed a lawsuit seeking the cancellation of the sale contract on the land owned by the former non-party 1 on March 7, 2018 (the Changwon District Court Decision 2018Na51068), but it was dismissed on September 6, 2018 (the Busan High Court Decision 2018Na128377, Sept. 2, 2018). However, the Plaintiff filed an appeal [the] Busan High Court 2018Na128377, Sept. 1, 2019, except for the Plaintiff’s “real estate not acquired” among the private land Nos. 1 66,584.9 meters in the remaining private land. Nonparty 1 filed a lawsuit seeking the cancellation of the sale contract on the land owned by the former non-party 1 on September 31, 2018 (the Plaintiff’s right to use the housing construction site).

2) State-owned and public land portion

A) As to the state and public land included in the site area of the housing construction project, if the management agency of the relevant land submits to the project undertaker documents confirming that the land is to be sold or transferred to the project undertaker, it shall be deemed that the project undertaker has secured the right to use the state and public land (Article 21(1)1 of the Housing Act). If the management agency of the state and public land did not express its opposition to the implementation of the project in the course of consultation on whether to approve the housing construction project plan, it shall be reasonable to deem that it consents to the implementation of the project (see Supreme Court Decision 2004Du138,

B) In full view of the following circumstances, the Ministry of Land, Infrastructure and Transport, the Korea Asset Management Corporation, and each management department of Kimhae-si, which are the managing agency of the State-owned land of this case, send to the Plaintiff a document stating the matters on the procedure, under the premise that they sell or transfer the State-owned land of this case to the Plaintiff, and the Plaintiff did not raise any special objection to the use of the State-owned land of this case for the instant housing construction project. ② At the same time as the managing agency of the instant business plan, the Kimhae-si, the owner of the public land of this case, can be deemed to have expressed its intent to consent to the instant business plan through the disposition of the instant business plan. In full view of the following circumstances, it is reasonable to deem that the Plaintiff secured a right to use the State-owned land of this case 11,692 square meters among the housing site of this case and 82,267 square meters.

3) Sub-decisions

Therefore, the Plaintiff secured the right to use at least 95% [95.15% x 78,276.9 ± 82,276 x 11,692 m2] of the area of the housing site as stipulated under Article 22(1)1 of the Housing Act by securing the right to use the private land among 82,267 m2.9 m2 and the public land of 11,692 m2 (=6,584.9 m2,69 x 100 m2).

(b) whether prior consultation obligations are fulfilled;

(i) whether the period of prior consultation is complied with;

Where a project proprietor who has obtained approval for a housing construction project plan fails to reach an agreement within three months after obtaining the approval, it is reasonable to deem that he/she may file a claim for sale within two months from the date on which the agreement is completed (see Supreme Court Decision 2011Da89446, Mar. 14, 2013). Article 22(1) of the Housing Act merely requires a prior consultation for a period of at least three months after the approval of the project plan and does not impose any restrictions on the method or time of such consultation, and such consultation shall not be deemed to have been completed after filing a lawsuit claiming a right by exercising the right to claim sale (see Supreme Court Decision 2010Da97068, Nov. 10, 201).

From April 20, 2018 to August 9, 2018, the Plaintiff, after the approval of the instant project plan, consulted with the Defendants for a period of not less than three months as prescribed by Article 22(1) of the Housing Act, as seen earlier. Within two months from August 9, 2018, the Plaintiff submitted an application for change of the purport of the claim and the cause of the claim as of August 28, 2018, and exercised the right to demand sale against the Defendants. The above declaration of intent reaches the Defendants on each of the relevant date indicated in the “Conclusion Date” in the attached list, and it is apparent that the Plaintiff complied with the period of prior consultation under the Housing Act.

2) Whether specific and substantial consultation is complied with

A) As a requirement for exercising the right to demand sale, “consultation” that must undergo a consultation for a period of not less than three months ought to be deemed to mean a specific and substantial consultation between a project proprietor and a housing site owner. In addition, barring any special circumstance, determination of whether a project proprietor who obtained approval for a housing construction project plan presents a sale price or a reasonable ground for its calculation, whether a project proprietor has made efforts to conduct the consultation, and what attitude a housing site owner had shown in consultation shall be taken into account. The burden of proving the fulfillment of the requirements is borne by a project proprietor (see Supreme Court Decision 2011Da101315, 101322, May 9, 2013).

B) In full view of the following facts and circumstances, it is reasonable to deem that the Plaintiff exercised the right to demand sale after specific and substantial consultation with the Defendant for a period of not less than three months from April 9, 2018, which was approved after the approval of the instant project plan, based on the following facts and circumstances, which can be acknowledged by adding the overall purport of the pleadings to the respective statements in Gap evidence Nos. 11 through 16, 20, and 21.

① After the approval of the instant project plan from April 20, 2018 to August 9, 2018, the Plaintiff, at least 20 times, by visiting the Defendants and the Defendants’ attorneys-at-law to trade each of the instant real estate through telephone calls, telephone calls, and sending content certification, etc., and the court of first instance conducted conciliation once in the first instance. The Plaintiff thereafter exercised the right to demand sale by exercising the right to demand sale by filing an application for modification of the purport of, and the cause of, the instant claim on August 28, 2018.

② The Plaintiff, in the course of the above liaison, sent to Defendant 1 the intention to purchase KRW 4,500,000 per square year with respect to the real estate No. 1 in this case on the basis of the officially announced price of each of the instant real estate and the locational location similar to the above real estate, and to Defendant 2 at KRW 4,000 per square year with respect to the real estate No. 2 in this case, and to Defendant 3 at KRW 2,000 per square year with respect to the real estate No. 3 in this case, and thereafter, presented to Defendant 1 the intention to purchase KRW 7,400,000 per square year with respect to the real estate No. 1 in this case, KRW 6,50,00 per square year with respect to the real estate No. 3 in this case, KRW 30,500 per square year with respect to the real estate No. 3 in this case, KRW 305,500 per square year with respect to the real estate No. 2 in this case, KRW 36507,501,

③ The Defendants asserted that the Plaintiff merely notified the Plaintiff of the purchase at a price unilaterally set by the Plaintiff, and thus, did not perform specific and substantial trade consultation. However, the details of the Plaintiff’s request for trade consultation or the preparatory documents informing the purchaser’s intention submitted during the instant litigation process include the details of the approval of the instant project plan, the size of the land, the method of trade consultation, and the personal information of the person in charge. Although the difference between the desired sale price and the desired sale price was large, the Defendants presented the basis, presented the desired purchase price, and presented the Plaintiff’s desired purchase price, and the price presented by the Plaintiff does not seem to have exceeded

④ Although the difference between the desired sale price and the desired sale price of the Defendants was large, the Plaintiff presented the desired purchase price in detail during the course of the trade consultation, and notified Nonparty 2 of the intent to purchase the purchase price at a price higher than the appraised value presented by Nonparty 2 in the instant lawsuit. On the other hand, the Defendants did not seem to have presented a compromise with respect to the Plaintiff’s request for the trade consultation and expressed an opinion that the price presented by the Plaintiff is too low. However, in fact, the Defendants did not have an intention to negotiate with the Plaintiff as long as the sale price desired by the Defendants is not close to the sale price desired by the Defendants.

C. Whether the market price calculation is lawful

1) Where a sales contract becomes effective based on the market price as a result of the exercise of a claim for sale based on Article 22(1) of the Housing Act, “market price” means the objective transaction price of real estate subject to the claim for sale at the time when the right to request for sale has been exercised, which includes the development gains expected to accrue from a housing construction project on the premise that there was a disposition to approve the housing construction project plan for the relevant real estate (see Supreme Court Decision 2008Da21549, 2156, 21563, March 26, 2009). The appraiser’s appraisal result should be respected unless there is obvious fault, such as that the appraisal method is against the empirical rule or unreasonable (see, e.g., Supreme Court Decision 2009Da84068, 84615, 84622, 84639, Jan. 12, 2012).

2) In full view of the following circumstances that can be recognized by adding the whole purport of pleadings to the result of the fact-finding inquiry by the court of first instance with respect to Nonparty 2, the appraiser Nonparty 2 of the first instance court acknowledged that the market price of each real estate of this case (the amount stated in the attached list “sale price”) was determined by considering the development gains anticipated due to the housing construction project, and cannot be deemed to have any error in the result of such appraisal.

A) The meaning of the market price stipulated in Article 22(1) of the Housing Act is not the objective transaction price of the land or building at the time when the right to claim sale was exercised, and the price including the development gains expected to be accrued therefrom as a result of the housing construction project plan, but the purpose of the expected development gains is not to include the development gains premised on the unrealizing and unrealizing profits or the future cost-bearing before the completion of the housing construction project in advance and to reflect them in whole at the present time, but to reflect the development gains at the time when the housing construction project is being carried out, which have been gradually embodied,

B) Development gains, which are embodied according to the progress of development, are reflected in the officially announced land price of the reference land publicly announced and announced annually. The appraiser Nonparty 2 selected a comparative standard site that reflects development gains in the evaluation of each real estate of this case, and made a time adjustment according to the land price fluctuation rate. Based on the officially announced land price of the reference land, the market price was calculated by applying other factors correction factors calculated based on the comparison of regional factors, individual factors [the access conditions compared to non-standard land, catch conditions, administrative conditions, and other conditions (such as future trends)] based on the officially announced land price of the reference land and reflecting development gains.

C) Inasmuch as the current status of land becomes a part of multi-family housing when a housing reconstruction project is implemented even if it is a road, the market price is the same as the neighboring site price under the premise that the housing reconstruction project will be implemented. However, it is reasonable to calculate by means of a reduction in consideration of individual factors, such as the form of each land, accessibility to major main main roads, and conditions of land access (see Supreme Court Decision 2014Da41698, Dec. 11, 2014). Non-party 2 of the first instance trial selected land as an irregular land whose category is a ditch, and as the current status is the third real estate of this case, the land price is higher than the comparative standard. The street conditions among individual factors are similar to the access conditions, environmental conditions, and other conditions. The land conditions and administrative conditions are calculated at 0.35,000 based on the individual factors calculated based on the ratio of individual factors calculated as above, and other factors calculated based solely on such circumstances.

D) It is recognized that the appraisal value of the pertinent building is calculated without confirming the inside of each of the instant real estate by Nonparty 2. However, Nonparty 2 of the first instance trial calculated the market price at the time of appraisal by referring to the table of the unit cost of construction of the building issued by the Korea Appraisal Board, etc. on the basis of external observation and search through the field investigation based on the structure and purpose of the general building management ledger. Considering that Nonparty 2 of the first instance trial could not have access to the said building due to the Defendants’ non- cooperation, and thus, Nonparty 2 did not confirm the inside of the said building, the Defendants cannot be found to have any error in the appraisal without internal verification, and there is no illegality in the procedure and result of the said appraisal.

E) It cannot be found that the court of first instance found that the appraisal method, etc. violates the rule of experience or is unreasonable in light of the result of a request for market price appraisal by Nonparty 2.

F) The market price of each of the instant real estate was July 12, 2018, and the date of appraisal between the Plaintiff and the Defendants on August 30, 2018, which is the date of concluding a contract for the sale and purchase of each of the instant real estate between the Plaintiff and the Defendants, but the interval was less than 50 days, and there was no change in the officially announced price of the comparative standard land during that period, or there was no special circumstance that may cause a change in the market price. Thus, the market price on August 30, 2018 of each of the instant real estate is confirmed to be the same as the market price on July 12, 2018.

D. Sub-committee

The Plaintiff, a legitimate business operator of the instant housing construction project, performed a prior consultation procedure with the Defendants for a period of not less than three months as stipulated in Article 22(1) of the Housing Act, and filed an application for change of the purport of the claim and the cause of the claim with the court of first instance, which may be deemed to have been terminated, within two months from August 9, 2018, and exercised the Defendants’ right to demand sale. The said declaration of intent was served to the Defendants on each corresponding date as indicated in the “the date of conclusion” stated in the separate list in the separate list, and thus, the sales contract was duly established with each corresponding amount in the same list “sale price” as the market price of each of the pertinent real estate stated on each of the above dates.

Therefore, the Defendants are obliged to receive each corresponding amount as stated in the separate sheet “sale Price” column from the Plaintiff and, at the same time, to perform the registration procedure for transfer of ownership based on the sale of each corresponding date as stated in the “Date of Conclusion” column of the same list with respect to each pertinent real estate stated in the Plaintiff.

5. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted in its entirety on the grounds of its reasoning, and the judgment of the court of first instance is just in its conclusion, and all appeals by the defendants are dismissed, and it is so decided as per Disposition.

[Attachment]

At least two judges' Gangseo-gu (Presiding Judge)