In a case where the sectional owners of one building own the site according to the share of co-ownership at the time of the initial purchase of the building, whether the sectional owners may file a claim for return of unjust enrichment on the ground of a difference in the share of co-ownership (negative in principle)

Articles 263 and 741 of the Civil Act

Supreme Court Decision 93Da60144 Decided March 14, 1995 (Gong1995Sang, 1598) Supreme Court Decision 2009Da76522 Decided July 14, 2011

Hyundai Industrial Development Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Lee Ho-kin et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm the same and two others, Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na6990 decided May 29, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

If the sectional owners of one building own the site of the building in proportion to the share of co-ownership at the time of the initial purchase of the building in lots, they shall have a legitimate title to use all the site of the building for the purpose of use, irrespective of the share of co-ownership as to the site, barring special circumstances. Thus, the sectional owners may not file a claim for return of unjust enrichment on the ground of a difference in the share of co-ownership in the site (see, e.g., Supreme Court Decisions 93Da60144, Mar. 14, 1995; 2009Da76522, Jul. 14, 2011).

Examining the record in light of the aforementioned legal principles, the Plaintiff and the Defendants are in a divided ownership relationship with the instant building, and they share the site of the instant building in proportion to the share of co-ownership at the time the instant building was sold. Therefore, even if the Plaintiff’s share of the land on the floor and the first and second floors of the instant building owned by the Defendants is higher than the share of the site for each corresponding unit of the instant building owned by the Defendants, in the instant case where special circumstances to see otherwise do not peep on the record, the Defendants have a legitimate right to use all the instant land, which is the site of the instant building, for the purpose of use, regardless of the share of each of the instant land, regardless of the share of each of the instant land. Accordingly, the Plaintiff cannot seek a return of unjust enrichment against the Defendants on the grounds of a difference in the share of co-ownership with respect to each of the instant land.

Although the reasoning of the judgment of the court of first instance cited by the court below is inadequate, the decision of the court below that made the above conclusion is just, and there is no error of law by misapprehending the legal principles as to the scope of right to use site among the sectional owners of an aggregate building, as otherwise alleged in the ground of appeal. The Supreme Court precedents cited in the ground of appeal are different from this case, and it is not appropriate to invoke this case.

Therefore, the appeal is 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.

Justices Kim Yong-deok (Presiding Justice)