[1] In a case where several partitioned buildings which become the object of sectional ownership due to structural subdivisions among one building become one building that loses independence as a building by means of removal of the partition walls between them, and becomes one building that consists of sections for exclusive use after being integrated and integrated, the validity of registration of the existing partitioned buildings

[2] The effect of registration of each partitioned building in a case where the location and size of each partitioned building can be specified and it is easy to restore because of temporary premise of restoration under social norms, even though the boundary walls installed between neighboring sections lose the independence in structure and use, and where the scope of the object of sectional ownership cannot be determined by structural division, whether registration itself is null and void even if it is registered as an independent sectional building on the building management ledger and registration is made for the purpose of sectional ownership on the register (affirmative)

[3] The case holding that the judgment below erred by misapprehending legal principles in a case where the registration of subdivision of a commercial building in the commercial building is null and void in itself in light of all circumstances, and the registration of subdivision of a commercial building in the commercial building is deemed null and void in itself, and its validity is recognized only as co-ownership share registration corresponding to the ratio of the above co-ownership share among new buildings resulting from remodeling, even though it is recognized that the registration of subdivision of a commercial building in the commercial building in the commercial building is valid, since approval for the use of the section of the commercial building was not granted due to the failure to obtain permission for remodeling construction even though the structure, number of floors, area, etc. of the building was changed due to the completion of construction.

[1] Where several sections of a building which are structurally divided are independent buildings, but each section becomes one building with the independence of the building by means of removal of walls between the sections, etc., the registration of the existing section of building is recognized only as co-ownership registration equivalent to the proportion of co-ownership owned by the above section of building among the new buildings created jointly by the co-ownership.

[2] Even if the boundary wall installed between neighboring sections has been removed for certain reasons and each section has lost its independence in structure and use, if the location and size of each section can be specified, and if it is temporary under the premise of restoration as a sectioned building by social norms, and it is easy to restore it, it cannot be readily concluded that the substance as a sectioned is lost, and even if the registration is valid as a registration indicating the sectional ownership, but it cannot be said that there is structural independence if the scope of the object of sectional ownership cannot be determined by structural division, and a part of the building that fails to meet the requirements as the object of sectional ownership cannot be established. Thus, even if it is registered as an independent sectional building on the building management ledger and is registered for the purpose of sectional ownership on the register, its registration is null and void by itself.

[3] The case holding that in a case where one commercial building was not approved for the use of a section in the commercial building even after the completion of a remodeling project because the structure, number of floors, area, etc. of the building was changed due to the lack of approval for the use of the section in the commercial building, and as a result, the building register and the register were not properly reflected in the current status of the building as to each registered section in the sectional ownership of the building in the commercial building, the decision of the court below that the division of each registered section in the commercial building in the existing sectional ownership in the commercial building has lost independence in structure and use as a sectional building due to the removal of walls from the beginning or remodeling, and the change of structure, location and area of the building in the commercial building in the commercial building in the commercial building in the form of a group, even if the building is divided into several stores after the integration, the scope of the object of sectional ownership according to the existing sectional ownership cannot be determined as to the division of the building in the commercial building in accordance with the existing division registration, or it is difficult to restore it as a temporary or easy.

[1] Articles 186 and 215 of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 186 and 215 of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [3] Articles 186 and 215 of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Order 2009Ma1385 Decided March 22, 2010 / [2] Supreme Court Order 98Ma1438 Decided June 2, 199 (Gong199Ha, 1851) Supreme Court Order 2008Ma696 Decided September 11, 2008 (Gong2010Sang, 703) Decided January 14, 2010 (Gong2010Sang, 703)

Plaintiff 1 and one other (Law Firm Barun, Attorneys Kim Yong-woo et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na16760 decided May 1, 2018

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 it is a temporary premise that the location and size of each sectioned building can be specified, and if it is easy to restore it as a sectioned building under social norms, it cannot be readily concluded that the substance as a sectioned building should be 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 cannot be established as an object of sectional ownership. Thus, even if it is registered as an independent sectioned building on the building management ledger and registered for the purpose of sectional ownership, its registration is null and void in itself (see Supreme Court Order 2010Ma4196, Sept. 10, 2014.

2. The lower court determined that: (a) the Defendants, who were the owners on the registry of Nos. 1, 2, 10, 34.58 square meters of the 2nd floor and 27.84 square meters of the 2nd floor of the building (hereinafter “instant building”) located in Jung-gu, Seoul, and 15 on the ground of ○○○○○○○○-dong building (hereinafter “△△△△-dong building”); (b) the Defendants, who were the occupants of the stores No. 28, 67, 68, and 70 (hereinafter “each of the instant stores”), sought the delivery of each of the instant stores, on the grounds that there was no indication after remodeling the instant building, and that there was a difference in the actual status with the indication on the registry of the instant building and the actual status thereof; (c) the Defendants, which were the owners of the instant buildings, have an obligation to separate each of the instant parts from each of the instant units, and thus, the ownership of each of the instant parts becomes independent and independent from each of each of the instant buildings.

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

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) A building on Dogsung, which was completed on October 30, 1958, was determined as a dangerous building as a result of structural safety inspection conducted on May 2002, and was ordered to reinforce the building by Seoul Special Metropolitan City, etc. (hereinafter “instant remodeling”). Accordingly, the structure was as follows: (i) the structure of the building was built from May 2005 to June 2006; (ii) the steel-frame concrete structure from reinforced concrete structure; (iii) the area of the building was 873.04 square meters from the first floor; and (iv) the area was 925 square meters from the second floor and 2nd floor to the 524.1 square meters from the second floor; and (iv) the existing waterworks of the store was extended from approximately 170 to about 250.250.

2) As the use of the instant building was not approved even after completion due to the failure of the competent authorities to obtain permission for the instant remodelling construction from the competent authorities, registration of change of indication and registration of change 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 △△△△ City did not properly reflect the current status of the building at present.

4) As to the current status of the instant building, the appraisal report of the Seoul Central District Court No. 2009Ma13058 and 2014MaMa1686, which commenced with respect to the instant building, “The building at △△△ is not divided into rooms in the public record, and is occupied and used by each floor separated from rooms in the public record,” and “The building at issue is being registered as a collective building but is operated in the form of sharing profits according to the share ratio by the co-owners’ joint operation, regardless of the location between the co-owners due to the extension and reconstruction of two years before the building was registered as a collective building, and the ownership ratio of the land and the building is different.” The title at issue does not vary from the “1, 210” or “the title at issue, 203, 204, 276 and 278, 276, 276, 276, and 276.”

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, appears to have lost the independence in the structure and use of the partitioned building as it did not have the walls from the beginning or has been removed from the remodeling of this case, and its structure, location and area have been changed, and thus, it would have lost its unity in the structure and use as a divided building. Even if △△△ after the said integration, even if the building was divided into approximately 250 stores, it cannot be determined on the basis of the structural division of the building, and it cannot be said that the said remodeling is temporary or difficult to restore 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 co-ownership corresponding to the ratio of the building of this case among the new buildings, which was caused by the remodeling of this case, is recognized only if it is recognized as a co-ownership share.

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 (Presiding Justice)