2016family359 Management Expenses

A Building Management and Operation Committee

Law Firm Han-ro, Counsel for defendant-appellant

[Defendant-Appellee]

1. B

Law Firm Pool, Counsel for the plaintiff-appellant

Attorney Jeong Jae-jin, and Dominia

2. C Stock Company:

Attorney Jeong-hwan et al., Counsel for the defendant

June 2, 2017

July 7, 2017

1. Defendant B shall pay to the Plaintiff 182,506,914 won with 5% interest per annum from April 21, 2017 to July 7, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendant B and the defendant C's claims against the defendant C are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Company B shall be borne by each party, and the part arising between the Plaintiff and the Defendant Company shall be borne by

4. Paragraph 1 can be provisionally executed.

1. Defendant B Co., Ltd. shall pay to the Plaintiff 740,048,350 won and 486,482,880 won among them with Defendant C Co., Ltd. , with 15% interest per annum from the day following the delivery of a copy of the application for correction of the purport and cause of the claim of this case to the day of complete payment.

2. Defendant C Co., Ltd. pays to the Plaintiff 600,265,760 won and 486,482,880 won among them with Defendant C Co., Ltd. , with 15% interest per annum from the day following the delivery of a copy of the application for correction of the purport and cause of the claim of this case to the day of complete payment.

1. Facts of recognition;

A. On November 24, 2009, D Co., Ltd. (hereinafter referred to as "D") entered into a business agreement (hereinafter referred to as "the instant trust agreement") and management-type land trust agreement (hereinafter referred to as "the instant trust agreement") with financial institutions making loans, Si construction G Co., Ltd. (hereinafter referred to as "G") and Defendant C Co., Ltd. (hereinafter referred to as "Defendant C") on the following grounds: (a) on November 24, 2009, in order to carry out the business of constructing and selling apartment-type factories on the land E and F; (b) around August 201, A building (hereinafter referred to as "the instant aggregate building") was completed.

1) Pursuant to Article 5-2 of the instant project agreement and Article 5 of the instant trust agreement, Defendant C completed the registration of ownership preservation on August 12, 201 as to the whole of 260 rooms of the instant condominium building on August 12, 201.

2) Defendant B Co., Ltd. (hereinafter “Defendant B”) acquired ownership and completed the registration of ownership transfer of each partitioned building on the date indicated in the column of “the date of transfer of ownership” in the table below (hereinafter “instant 74 units”). Defendant B transferred the ownership of the instant condominium No. 1 (hereinafter “instant units”) to J on April 25, 2016, and transferred the ownership of the instant condominium No. 1 to L Co., Ltd. on July 20, 2016.

A person shall be appointed.

A person shall be appointed.

3) On August 26, 2011, AX was entrusted to Defendant C on the same day after the transfer of ownership from Defendant C to G. On the same day, the ownership was transferred to AY Co., Ltd. on August 28, 2015, and was entrusted to AZ Co., Ltd. on the same day.

4) On May 26, 2014, subparagraph BA transferred ownership from Defendant C to BB.

5) BC and BD were transferred from Defendant C to BE on February 3, 2015. The change in the managing body of the instant condominium building.

1) On June 22, 2011, BF Co., Ltd. (hereinafter referred to as “BF”) entered into a contract for comprehensive service between D and the executor of the instant aggregate building construction project and 260 housing units, and entered into a contract for management of the instant aggregate building from July 1, 201 to August 31, 2014, and began the management of the instant aggregate building from around that time. The term of the contract on September 22, 2014 has been renewed from October 1, 2014 to August 31, 2016, and continued the management act by concluding a contract for comprehensive service.

2) On May 13, 2015, the sectional owners of the instant aggregate building held a management body meeting to decide on the enactment of management rules and the establishment of management committee. Accordingly, on June 11, 2015, the Plaintiff constituted and obtained approval of the management rules from the Gu and the Plaintiff designated BG Co., Ltd. (hereinafter “BG”) as the management company of the instant aggregate building on July 20, 2015. The provisions relating to management fees in the Plaintiff’s management rules are as follows.

Article 3 (Definitions)

(2) The term "occupant" means a user who has occupied the building in accordance with a contract with a sectional owner or a sectional owner on the right.

(7) The term "A building management committee" means a management committee, i.e., a management organization, the purpose of which is to implement projects related to the management of a building A and its site and its affiliated facilities with representatives from each floor under Article 26 of the Act on the Ownership and Management of Aggregate Buildings.

(9) The term "managing body" means a managing body for the achievement of the purpose under Article 2 and the implementation thereof, and in cases of self-management, an autonomous management body or an entrusted management organization, "project proprietor" shall be entrusted.

Article 8 (Qualifications for Occupancy)

(1) Qualifications for sectional owners shall become effective when they acquire ownership of the section for exclusive use, and shall become extinct when they lose their ownership.

Article 10 (Occupancy's Duties)

(4) A resident shall pay management expenses and long-term repair appropriations, bad debts allowances, development funds, other insurance premiums including fire insurance premiums, fire-fighting systems and building safety inspection expenses, disinfection expenses, charges, charges, other charges, etc. (hereinafter referred to as "management expenses, etc.") necessary for the maintenance and management of an aggregate building, etc. at the monthly or at the same time and pay a certain amount of management expenses (hereinafter referred to as "management expenses, etc.") before moving into the management expenses

(5) Where a sectional owner lends and leases his/her section of exclusive ownership to a third party, he/she shall be liable to pay management expenses and allowances for repair, but the sectional owner shall be jointly and severally liable for the payment thereof.

Article 12 (Succession to Rights and Duties)

(1) The management rules and matters resolved by the management committee shall also have effect on those who succeed to the status of a tenant (including special successors).

(2) A person who succeeds or acquires the sectional ownership of a new building shall relating to the building.

All of the obligation to pay shall be succeeded, and the obligation of the Steering Committee incurred before the succession shall also be responsible for the obligation of the Steering Committee. If the management entity does not fully pay the delinquent management expenses, etc. before the succession, it may choose not to supply electricity, water supply, etc. or

Article 37 (Management Expenses, etc.)

(1) Management expenses shall be the sum of monthly amounts of the following items, and the calculation method of amounts to be borne by each household shall be in accordance with the principle of employer-sharing and the principle of fairness:

1. General management expenses;

2. Cleaning expenses;

3. Guard expenses;

4. Disinfection expenses;

5. Maintenance expenses for elevators and cargo elevators;

6. Expenses for hot water supply;

8. Maintenance expenses for intelligent home network facilities; 9. Electric utility charges for 10.12. Common electricity charges; 14. Common electricity charges for the inspection of fire-fighting systems; 15. Long-term repair allowances (special) and allowances for bad debts; 17. Other expenses for maintenance of intelligent home network facilities;

Article 39 (Arrears Fee, etc.) If a resident fails to pay the monthly management expenses without paying it, he/she may take necessary measures, such as adding the overdue charge ( maximum of 20% per annum), the suspension of a short or short-term parking ticket, or the suspension of a free parking ticket, etc. for at least two months, and any damage therefrom shall be liable to the tenant.

3) Although the Plaintiff was constituted and the controlled entity was selected, BF continued to possess the instant condominium management office on the ground of the integrated management service contract with D and interfered with the Plaintiff’s business of managing the instant condominium building. The Plaintiff and BG filed a provisional disposition against BF to seek prohibition against the management of the instant condominium building, and received a partial decision of acceptance as to November 24, 2015, the Daegu District Court Kimcheon-Support 2015Kahap1011. On June 17, 2016, the Plaintiff filed a lawsuit on the same merits and received a partial acceptance decision (the instant lawsuit is currently pending in the appellate court as Daegu High Court 2016Na23978). The Plaintiff is performing the business of managing the instant condominium building by being handed over from BF the management office, etc. of the instant condominium building after receiving the provisional disposition.

[Based on Recognition] In without dispute, Gap evidence 1, 7, 8, Eul evidence 6-1, 2, Eul evidence 1, 4-1, 2, Eul evidence 4-1, 9-1, Eul evidence 12-2, Eul evidence 14, Eul evidence 14, Eul evidence 1-87, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The plaintiff is a management committee organized for the management of the aggregate building of this case pursuant to the management rules.

There is a right to collect management expenses against sectional owners.

Defendant C is the former sectional owner of the instant 74 units and AX, BA, BC, and BD (hereinafter collectively referred to as “the instant 78 units”). According to the following facts: (a) from October 2013, the ownership of the instant 78 units was acquired to the time the ownership was lost, Defendant C is obligated to pay KRW 486,482,80, management fees for exclusive use areas, KRW 44,578,540, management fees for exclusive use areas, KRW 69,204, KRW 310, and KRW 600,265,730, and delay damages incurred from October 201 to January 2016 (hereinafter collectively referred to as “the instant 78 units”); (b) the content of the calculation of management expenses and KRW 600,265,730, and KRW 760,760,760, and KRW 7886,780, the Plaintiff appears to have claimed that the instant construction expenses were not claimed.

Since the contents are also included, the above 486,482,880 won is the amount claimed as the management fee for common areas incurred in relation to the 78 units of this case (However, the above 486,482,880 won is not in accord with the total management fee for common areas of attached Table 1).

As a special successor of Defendant C, Defendant C is obligated to jointly pay KRW 486,482,880 for the unpaid common area management fees to Defendant C. As for the remaining 78 units of common area, Defendant C is obligated to jointly pay KRW 72 units of the 74 units of the instant case except for the heading and K, and the remaining 72 units of the 74 units of the instant case (hereinafter referred to as “the 72 units of the 75 units”) from the date of acquisition of the ownership, and to pay KRW 221,280,430, late July 2016 for the common area and the management expenses for exclusive areas of exclusive use until July 2016, the total amount of KRW 253,565,470 and delay damages therefrom [the calculation items and details are as stated in attached Table 2]. The Plaintiff did not claim the remainder of KRW 253,546,756,756,75,70 and its damages for delay are as stated in attached Table 2.

3. Determination on the collector of management expenses of the aggregate building in this case

A. Legal doctrine

1) Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) provides that “If a sectional ownership relationship with respect to a building is established, a management body shall be established with the aim of carrying out the business of managing the building, site and attached facilities by making all sectional owners of the building as members of the sectional ownership if the sectional ownership relationship with respect to the building is established.” Thus, a management body is an organization established not only through any organizational action but also by a management body where a sectional ownership relationship is established, as a matter of course, by making all sectional owners of the building as members of the sectional ownership (see, e.g., Supreme Court Decision 2002Da

If the number of sectional owners is ten or more, a manager shall be appointed by a resolution of the management division meeting (Article 24(1) and (2) of the Aggregate Buildings Act); the manager shall have the authority and obligations to act for the preservation, management, and change of common areas; to claim and receive the allotted amount and expenses for the performance of affairs of the management body; to the sectional owners (Article 25(1) of the Aggregate Buildings Act); and to manage the money (Article 25(1) of the Aggregate Buildings Act). Therefore, the sectional owners shall bear the responsibility to pay the management expenses to the management body under the Aggregate Buildings Act or

On the other hand, the seller of buildings and sites shall manage the building and site with the care of a good manager until the management body commences, and where the sectional owner fails to convene a management unit meeting for the establishment of regulations and the appointment of a manager within three months from the date at least one half of the prearranged buyers registered the relocation, he/she shall convene a management unit meeting without delay (Article 9-3(1) and (3) of the Aggregate Buildings Act).

2) However, under the status that a management body of an aggregate building was not actually organized, among sectional owners

If the owner, who is one of the owners, becomes the main body and has actually managed the sectionally owned building through the controlled entity, it cannot be deemed an autonomous management by the management body immediately. If the management body failed to rearrange the organization for self-management after its establishment and did not commence self-management and the owner still becomes the main body and manages the sectionally owned building, then the right and responsibility for the management of the sectionally owned building shall not be attributed to the management body during the period when the owner manages the building (see, e.g., Supreme Court Decision 96Da12054, Dec. 10, 196).

B. Determination

In other words, the following circumstances are comprehensively taken into account the evidence and the overall purport of the arguments, i.e., ① even though the aggregate building was completed on August 201, the Plaintiff and BG acquired 160 rooms among the 260 units under the contract for the acquisition of the responsibility for the management of the instant project agreement, and the rest of the units was the trustee of the Defendant C, ② the executor and the truster of the aggregate building were designated as BF as the controlled entity for more than 3 years, ③ the owners of the instant aggregate building held the management body meeting and formed the Plaintiff. After that, the Plaintiff and BG did not receive the transfer system for the management of the building; ④ After that, the Plaintiff and BG had the authority to request provisional disposition against the owner of the instant building to prohibit interference with the management of the building, the Plaintiff and BG obtained the right to request provisional disposition against the owner of the instant aggregate building or the owner of the instant building on November 24, 2015.

4. Determination as to the claim against Defendant C

The management fees for common areas and exclusive areas in the 78 units of this case for which the Plaintiff seeks payment against Defendant C have arisen between October 2013 and November 23, 2015, the period during which Defendant C possessed its ownership. However, as seen earlier, the Plaintiff did not have the authority to collect the management fees incurred before November 23, 2015 regarding the instant aggregate building. Furthermore, the overdue interest claim arising from the unpaid management fees is dependent on the management expenses claim, which is the principal claim, and thus, the Plaintiff has no authority to collect the overdue interest accrued before November 23, 2015.

In addition, a trustee may oppose a third party (see Supreme Court Decision 2012Da13590, May 9, 2012). According to Articles 22(1) and 15 of the Trust Contract attached to the original trust register of the instant 78 units and Article 9 and 15 of the Trust Contract between G and Defendant C, which are attached to the original trust register of the instant 78 units and the trust register of the AX units, the truster bears tax, public charges, various management expenses, etc. on the subject matter of trust. Thus, Defendant C merely states that the truster bears the burden of the management expenses incurred during the period in which the instant 78 units of trust are entrusted in its own name, and the truster bears the responsibility to pay the management expenses (the Plaintiff is not a real estate security trust, but a land management trust of the instant units of trust, and thus, Defendant C did not assert the opposing power against the person liable to pay the management expenses by no later than September 2013.

The plaintiff's claim against the defendant C is without merit without any need to further examine whether the management expenses are unpaid, whether the expenses are overdue, and the amount thereof.

5. Determination as to the claim against the defendant B

A. Determination on management expenses for the unpaid section for common use incurred in relation to the 78 units of this case

According to the above facts of recognition, the special successor of AY, BA from among the 78 units of the instant 78 units is BE for the special successor of BB, BC, and BD, and there is no reason to further determine the other part of the part seeking the payment of the management fee for the common area area incurred from October 23, 2013 to November 23, 2015, on the premise that the special successor of BB, BC, and BD is the special successor of the said 4 units of the Plaintiff’s claim.

Meanwhile, the fact that Defendant B transferred the ownership of the instant 74 units from July 28, 2015 to November 24, 2015 by Defendant C is as seen earlier, and the special provisions of the former sectional owners are as follows.

Of the management rules that require a successor to succeed to delinquent management expenses for common areas, the part concerning the management expenses for common areas, based on Article 18 of the Aggregate Buildings Act, is valid (see, e.g., Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006). However, as seen earlier, the Plaintiff did not have the right to collect management expenses incurred before November 23, 2015 regarding the instant aggregate building. Accordingly, the Plaintiff’s claim as to the part concerning the claim for the payment of the management expenses for common areas, which occurred from October 2013 to November 23, 2015, is groundless.

B. Determination on the management expenses and late payment charges incurred after November 24, 2015 on the remaining 72 nursing rooms

As the sectional owners of the remaining 72 units, Defendant B is obligated to pay all the common areas and the management expenses for exclusive use in each unit and the arrears due to the delinquency in the relevant management expenses to the Plaintiff, as prescribed by the management rules. The remaining 72 units management expenses incurred from November 24, 2015 to July 2016 shall be KRW 159,330,385 in total and KRW 23,176,529 in total, and the calculation details are as shown in the attached Table 3 [in the case of management expenses for November 2015, KRW 65 units, the ownership of which was acquired by Defendant B before October 10, 2015, KRW 15,00 in total, KRW 15,00 in total, KRW 15,00 in total, KRW 270 in total, and KRW 15,000 in the management expenses for the portion acquired by the Plaintiff on November 24, 2015 and KRW 15,000 in total.

1) Defendant B asserts that the amount calculated as deficit contributions out of the management expenses calculated by the Plaintiff should be excluded from the management expenses, since the “loss contributions” is not included in the management expenses item under the management rules.

However, in addition to the above facts, the following circumstances are acknowledged by Eul's evidence 15, Eul's evidence 16-1 to 16-9, and the purport of the whole pleadings, namely, the plaintiff, through a resolution of the Steering Committee on February 2, 2016, dealt with the amount of claims such as management expenses that the plaintiff had not received for a long time from the defendant Eul, etc. as losses, and then appropriated the amount of claims such as management expenses that the plaintiff had not received for a long time from the defendant Eul, etc. in the management expenses, and subsequently collected the claims through lawsuit, etc., and then proposed to the general meeting of the shareholders. The above agenda was resolved at the ordinary meeting of the management body on February 16, 2016, and the amount of losses falls under the "share" under Article 10 (4) of the management rules. Thus, it is difficult to accept the above argument.

2) Although Defendant B asserted that the Plaintiff unfairly appropriated the management expenses, there is no evidence to acknowledge that the management expenses were more excessive than the actual ones, the above assertion is rejected.

3) Although Defendant B demanded the Plaintiff to disclose the details of management expenses in detail, the Plaintiff refused to comply therewith, Defendant B did not have an obligation to pay late payment charges on the grounds that there was no reason attributable to the unpaid management expenses. However, Article 26 of the Multi-Family Building Act is merely a provision that imposes an obligation to report the management expenses at least once a year on the administrator in charge of managing the management organization’s affairs, there is no ground to believe that there was any quid pro quo-related relationship between the manager’s duty to report and the manager’s duty to pay the management expenses, and the Plaintiff appears to notify the sectional owners of the detailed details of management expenses incurred in the entire aggregate building each month according to the evidence Nos. 16-9 and No. 17-1 and No. 2.

4) Defendant B is the Plaintiff and the occupant of BH is the Plaintiff, AS, Q, AO, BI, AP, AP, AT, AU, AWho, AV, and AV are BK, and the said occupant is the Plaintiff and the Defendant B is not the person obligated to pay the management expenses. However, according to the above facts of recognition, Defendant B is the owner of BH, AS, AS, AP, AP, AP, AU, AW, AV, AV, and AR under Article 10(5) of the Management Rules, and is jointly and severally liable with the occupant pursuant to Article 10(5) of the Management Rules. Thus, the above assertion is not accepted, since other persons or other companies occupy the above offices, and thus, Defendant B, a sectional owner, is not the person obligated to pay the management expenses.

D. Sub-determination

Defendant B is obligated to pay to the Plaintiff 182,506,914 won (i.e., 159,330,385 won + 23,176,529 won) and damages for delay at each rate of 15% per annum prescribed by the Civil Act from April 21, 2017 until July 7, 2017, which is the date following the day when the Plaintiff’s declaration of intent to demand the performance of the instant claim and the delivery date of a copy of the application for correction of the cause of the claim is clearly indicated.

6. Conclusion

The plaintiff's claim against the defendant B is justified within the scope of the above recognition, and the remainder of the claim against the defendant B and the claim against the defendant C are dismissed as they are without merit. It is so decided as per Disposition.

The presiding judge, judges and vice-ranking

Judge Freeboard

Judges Kim Gin-un