2018Da217875 Claim for Return of Sale Price, etc.

See Attached List of Plaintiffs (A and eight others)

[Defendant-Appellant] Defendant 1

Attorney Park Young-young, Justice Lee Jong-young, Counsel for the plaintiff-appellant

J

Law Firm LLC, Counsel for the defendant-appellant

Attorney Kim Dong-dong, Kim Jong-chul, Lee Jae-gu, Lee Jae-gu, the highest head of the area

Seoul High Court (Chuncheon) Decision 2017Na1139 Decided February 7, 2018

oly 10, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. Corridors, stairs, and other sections provided for the common use of all or some of sectional owners in the structure of an aggregate building cannot be the object of sectional ownership as common use areas. Section for common use of an aggregate building, in principle, belongs to the co-ownership of all sectional owners: Provided, That only if it is evident that only some sectional owners have offered for the common use, the section for common use belongs to the co-ownership of the sectional owners [Article 3(1) and Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Joint Building Act”). In this case, the objective purpose according to the structure of a building is determined unless there is a special agreement among the owners of all or some of sectional owners. Therefore, even if the objective purpose of use of the section for common use is changed by arbitrarily altering the section for common use, which is the section for common use, or the section for common use is registered as the section for common use, and the section for common use is not the object of exclusive ownership of a sectional owner (see, e.g., Supreme Court Decision 2005Da71656, Feb. 26, 2967).

2. Regarding ground of appeal No. 1

The court below determined that the corridor and central stairs of the 1st floor of the building in this case should pass through to the 3 to the 6th floor of the building in this case, and that the toilet of the 1st floor in this case constituted each section for the entire common use on the ground that all sectional owners of the building in this case are the structure available to all sectional owners of the 3 to the 6th floor of the building in this case, and that the corridor, resting rooms, and toilets of the 2nd floor in this case were installed outside the section for exclusive use so that users can freely access at the time of the establishment of sectional ownership of the building in this case, and that the 2nd floor central stairs of the 2nd floor in this case should pass to the 3 to the 6th floor of the building in this case, and did not accept the judgment of the court below in light of the legal principles as to each section for common use in the 1 to the 2nd floor in this case and the 2nd floor in this case, as alleged in the ground of appeal.

3. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that each living parking lot of the second and third floors of the building of this case is not allowed to be used only by sectional owners of the first and second floors of the building of this case, but can be used by all sectional owners of the building of this case, and thus constitutes the entire common area.

However, according to the reasoning of the judgment below and the records, each living parking lot of the second and third floors of the building of this case is registered as co-ownership by the owners of the second and third floors of this case at the time of completion of construction of the building of this case, and the area calculated by dividing and calculating in proportion to the area of the first and second floors of the building of this case is entered as the collective building ledger of this case and the unit sale contract of each section for common use. ② Of the part of the second and third floors of this case building of this case, the passage part for moving to other floors of the building of this case is divided into the whole section for common use, and the above parking lot of this case constitutes a pure parking space, not a part for moving to other floors of the building of this case. ③ Since the third to six floors of the building of this case are parking lots for the purpose of use, it does not need to use each living parking lot again after the owners or users of the above parking lot parked in the above section for the exclusive use of the building of this case and each sectional owner of the building of this case.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that each of the root parking lots of the second and third floors of the instant building falls under the part provided for the use by the sectional owners of the first and second floors from the time of the construction of the instant building.

Nevertheless, the lower court determined that each of the above residential parking lots constituted the entire common areas, and ordered the Defendant to return the sales price reduced for the shortage of the area that the Plaintiffs bought to the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on partial common areas under the Aggregate Buildings Act, thereby adversely affecting the conclusion of the judgment.

4. As to the third ground for appeal

A. According to the reasoning of the judgment below, the court below determined that the water tank room was the part of the defendant's exclusive ownership on the ground that all the 4 to 6th floor of the building of this case is the exclusive ownership of the defendant, and it does not need to pass through the stairs, elevators, and parking slope of the second floor in order to go to the low floor of the building of this case. Thus, the elevator, stairs, and parking slope installed on the 4 to 6th floor of the building of this case shall be deemed the part of the defendant, which is the owner of the 4 to 6th floor of this case, and there is no evidence to acknowledge the fact that there is blocking between the water tank room of the 6th floor

B. However, according to the reasoning of the lower judgment and the record, the following circumstances can be acknowledged.

1) The above elevator, stairs room, and water tank room are structural parts provided for the common use of all or some of sectional owners, and it is impossible to set the object of sectional ownership pursuant to Article 3(1) of the Aggregate Buildings Act. Thus, it is naturally impossible to set the section for common use, regardless of the intention of sectional owners, and it is invalid even if the above elevator, stairs room, and water tank room were erroneously registered as

2) Therefore, it is problematic whether each of the above sections is offered for the public use of some sectional owners, not for the section for exclusive use. The elevator and the stairs room of the fourth to the sixth floor of the instant building are a passage to access the rooftop, which is the section for common use, and it seems clearly necessary for the entire sectional owners, and it does not seem that only some of the sectional owners can access and use it.

3) In addition, on the completion drawing prepared at the time of completion of the building in this case, the above water tank room is separate from the parking lot which is an exclusive part of the sixth floor, and it is deemed as a facility for water supply as a whole when it is objectively intended, and there is no evidence that only some of the sectional owners under the proviso of Article 10(1) of the Aggregate Buildings Act provide for public use.

4) On the other hand, the parking slope of the fourth and sixth floors of this case is a part that the sectional owners of each of the above parking lots should pass when moving to the low-rise parking lot between the above floors, and thus, it cannot be the section for exclusive use of each floor, which is provided to all or some of the owners of the structural classification, and it shall not be effective even if it was mistakenly registered as the section for exclusive use on the completion drawing and the collective building ledger.

5) However, the parking slope way for the above fourth and sixth floors is a space necessary for the passage of the sectional owners of the above fourth and sixth floors and the user of the above parking lot at the same time in the case of parking on the fourth and sixth floors without any need for the sectional owners of the above fourth and the sixth floors.

6) In addition, common areas such as rooftops and mechanical rooms can be accessed through elevators and stairs rooms, all common areas, and it is difficult to deem it necessary to pass through parking slope ways on rooftops.

C. Examining the above circumstances in light of the legal principles as seen earlier, the elevator, stairs room, and water tank room of the sixth floor of the instant building, which are installed on the fourth and sixth floor of the instant building, are the entire common areas provided to all sectional owners, and the parking slope of the fourth and sixth floor of the instant building, should be deemed as the partial common areas for only the sectional owners of the fourth and sixth floor of the instant building.

Nevertheless, the lower court determined that each of the above parts constitutes a section for exclusive use, and ordered the Defendant to return the sales price reduction for the shortage in the area that the Plaintiffs bought in lots. In so doing, the lower court erred by misapprehending the legal doctrine on the section for partial common use under the Aggregate Buildings Act, which affected the

5. Conclusion

Therefore, 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 Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant

A person shall be appointed.