In a case where a sectional owner of an aggregate building exclusively occupies and uses all or part of the common areas without a resolution of the management body meeting or the consent of other sectional owners pursuant to the relevant provisions of the Act on the Ownership and Management of Aggregate Buildings, whether another sectional owner may demand the delivery of the common areas as an act of preserving the common areas (negative), and whether a sectional owner may demand the prohibition of removal of interference with the common areas or of interference with the common possession (affirmative in principle)

If a minority right holder of the article jointly owned owns or uses all or part of the article jointly owned exclusively without consultation with other co-owners, other right holders may not demand the delivery as an act of preservation of the article jointly owned: Provided, That he/she may demand the removal of interference in the article jointly owned or the prohibition of interfering with the possession of the article jointly owned, based on his/her right of share.

Such a legal doctrine also applies to the common areas of an aggregate building (Article 10(1)) that can be used by the co-owners according to its purpose pursuant to the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”). Therefore, in cases where a sectional owner of an aggregate building occupies and uses the whole or part of common areas exclusively without a resolution of the management body meeting or other sectional owners pursuant to the relevant provisions of the Condominium Act, other sectional owners may not demand delivery as a preservation act of common areas, and barring any special circumstance, barring any special circumstance, he/she may demand the prohibition of removing interference in common areas or interfering with the joint possession.

Articles 211, 213, 214, 263, 265 of the Civil Act, Articles 10(1) and 11 of the Act on the Ownership and Management of Aggregate Buildings

Supreme Court en banc Decision 2018Da287522 Decided May 21, 2020 (Gong2020Ha, 1198)

Plaintiff (Attorney Song-con, Counsel for the plaintiff-appellant)

Pream Co., Ltd. and one other (Law Firm Citizens, Attorneys Lee Young-hoon, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2018Na65613 decided June 12, 2019

The part of the judgment below regarding the request for delivery of a building is reversed, and that part of the case is remanded to Suwon District Court. All remaining appeals are dismissed.

The grounds of appeal are examined.

1. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

A. The instant building is a commercial building of the size of 3rd underground floors and 7th underground floors and 3rd underground floors, both of which are located on the road side of the market. The Plaintiff is a co-owner of the first floor, 12 of the first floor, 2 of the Defendant Company, and the sampling of the Defendant Company (hereinafter “Defendant Company”) is a co-owner of the first floor underground.

B. Of the 1st floor above the instant building, part of “b” portion 18.2 square meters connected in sequence of each point indicated in drawings No. 10-15 and 10 attached to the lower judgment (hereinafter “the instant building part”) is composed of a corner of the first floor above the instant building, along with the 12th floor and 13th floor. When viewed on the road, there is a store with the Plaintiff’s 1st floor on the right side of the instant building, and there is Defendant 2’s store with the 12th floor above the left side.

The part of the instant building is included in “the toilets, stairs rooms, corridors, and other facilities for common use in the aggregate building register,” and was used as the entrance and exit of the first underground floor from the time of 2000.

The Defendant Company leased the instant building part to Defendant 2. The Defendants set up a glass door of 2.13 meters in length and a panel of 2.13 meters in length and 2.12 meters in length (hereinafter collectively referred to as “friend, etc.”) in part of the stairs connected to the first floor above the ground and shut down part of the stairs. The remainder of the stairs are maintained in form.

Defendant 2 uses the building part of the building part of this case as part of the store, such as with a studio and corridor used in the building part of this case, or with a studio in the upper part of the stairs which the panel is sub-sided, while operating a studio 12 store in the 12th floor.

C. The Plaintiff filed the instant lawsuit seeking removal of a glass door, etc. and delivery of the instant building portion against the Defendants, who exclusively occupied and used the instant building portion on the ground that they are co-owners of the instant building portion, which is the common use area.

2. Whether a co-owner of the section for common use of an aggregate building may request the exclusion of disturbance and delivery against other co-owners who own the section for common use exclusively;

A. If a minority equity right holder of the jointly owned property exclusively occupies and uses all or part of the jointly owned property without consultation with another co-owner, another right holder may not demand its delivery as an act of preserving the jointly owned property. However, a right holder may demand the prohibition of an act of removing interference with the jointly owned property or interfering with the joint possession based on his/her own right of share (see Supreme Court en banc Decision 2018Da287522, May 21, 2020).

Such a legal doctrine also applies to the common use of an aggregate building (Article 11) that can be used by the co-owners for the purpose of using the common use by all or some of the sectional owners (Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) pursuant to the common use by all or some of the sectional owners (Article 10(1); hereinafter “total common use”) under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”). Therefore, in cases where a sectional owner of an aggregate building occupies and uses all or part of the common use without a resolution of the management body meeting or the consent of other sectional owners pursuant to the provisions related to the Aggregate Buildings Act, other sectional owners may not demand its transfer as the preservation act of the common use area, and barring special circumstances, may request the prohibition of removing interference from the common use area or interfering with the common use.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The instant building was approved for use on February 25, 1987. The instant building, which was the corner of the 1st floor above ground, and the 12th floor and 13th floor were all included in “ toilets, stairs, corridors, and other” which are common areas at the time of registration in the collective building ledger. The 1st floor was composed of retail stores on March 22, 1990, and the 1st floor was changed to a neighborhood living facility (retail stores) on December 17, 1993. Ultimately, only the instant building remains common areas.

In the aggregate building ledger of the building of this case, including the building portion of this case, the section for common use of the 1st floor of this case is divided and calculated in proportion to the area of the Plaintiff’s section for exclusive use, and is indicated as the section for common use of the 1st floor owned by the Plaintiff.

At the time of registration of the aggregate building register of the instant building, if the building was lowered to the first floor underground through stairs connected to the instant part of the building at the time of registration, it was connected with the toilets, stairs rooms, and corridors, which are the section for common use of the first floor underground. On the ground level, a structure that was able to access the section for common use of the first floor from the second floor to the seventh floor above the ground level was a structure that was able to access the second floor above the second floor, but the section for common use of the first floor was changed to the sales facility, which is the section for exclusive use, on March 22, 1990.

Until 200, the instant building portion was used as a hole, corridor, and stairs for the entry into underground floors. Around 2000, the lessee of the first and second floors operated a bath and sobrying business, and the Defendant Company, a lessor, closed down the part connected to the instant building to the first floor above the ground level as a panel, and shut down stairs. Thereafter, Defendant 2, while running the instant building as a 12th floor, had the wall installed between the instant building and the 12th floor, and used the instant building portion as a part of the 12th floor.

According to the design drawings at the time of approval for the use of the building of this case, stairs connected from the first floor to the second floor above the ground through the building of this case were installed, but it seems to have been removed after the modification of design.

The Defendant Company temporarily closed the stairs among the parts of the instant building, but maintained the structure of stairs in preparation for the use of stairs due to a change in the category of the tea.

C. Examining these facts in light of the legal principles as seen earlier, the following determination is possible.

The instant building section, along with Nos. 12 and 13 of the first floor, was built as a passage to enter the underground floor and the second floor above the ground of the instant building. The section for common use of the first floor below the ground was used as a passage to enter the first floor above the ground before the purpose of use is changed to the section for exclusive use, and was the part allowing access to all the floors of the instant building. The instant section for common use of the building can be used as an emergency exit, entrance, etc. In the structure of the building. Therefore, it is reasonable to view the instant section as the entire section for common use.

The Plaintiff, as co-owners of the building of this case, may not request the Defendants, who are other co-owners exclusively possess the part of the building of this case where the glass door, etc. is installed, to transfer the building of this case. However, the Plaintiff may request removal of the building of this case, such as the glass door, which is based on the co-owners’

D. Nevertheless, the lower court, as an act of preserving jointly owned property, deemed that the Defendants may demand the delivery of the instant building portion, and received the Plaintiff’s claim for this part. In so doing, the lower court erred by misapprehending the legal doctrine as to the act of preserving jointly owned property, thereby adversely affecting the conclusion of the judgment.

Meanwhile, it is inappropriate for the court below to consider the Plaintiff’s request for removal as an act of preserving jointly-owned property. However, as seen above, the conclusion that accepting the Plaintiff’s request for removal, such as the glass letter, is legitimate, and there is no error affecting the conclusion of the judgment

3. Judgment on the Defendants’ grounds of appeal

A. Whether the part of the instant building constitutes the section for partial common use (Defendant 2’s ground of appeal No. 1 and Defendant Company’s ground of appeal)

(1) According to the reasoning of the lower judgment and the record, the following facts are revealed.

Around May 192, there was a resolution by the management body meeting in accordance with the written agreement of 11 persons among the 13 sectional owners of the instant building and 3,772.57 square meters among the 4,639.49 square meters of voting rights (hereinafter “192 resolution”). A written agreement of 3,772.57 square meters among the 13 sectional owners of the instant building is stated to the purport that “the resolution was made in 192, the stairs of the first floor, the opening section, and the HAL 36.1 square meters on the ground, and the retail store 8.1 square meters, and the 44.2 square meters of Do, which are installed arbitrarily for convenience, for the purpose of the sole use of the 349.85 square meters of underground sales facilities, and the other sectional ownership is not independent in structural and use, and it is confirmed that it is owned by the ○○○ Association.”

The Korean Association of ○○○○○○○ was a sectional owner of the first floor underground of the instant building before the Defendant Company. As seen above, the instant building portion constitutes the entire section for common use of the instant building.

(2) In light of these facts, the 1992 resolution is purported to confirm that the instant building portion is owned by the Korea Egyptian Association ○○○○○○○○ church on the premise that the structural independence exists in the structure and use of the instant building, and it is difficult to readily conclude that the instant building portion is a resolution changing from the entire common area to the partial common

Although the reasoning of the lower judgment is inappropriate, the conclusion that the instant building portion does not constitute the partial common use area is justifiable. On a different premise, the prior argument in the grounds of appeal is rejected.

B. Whether the judgment was omitted (Defendant 2’s ground of appeal No. 2)

(1) Defendant 2 asserts as follows. The Defendants asserted in the preparatory document dated March 11, 2019 as stated on the date of the second pleading of the lower judgment that the Defendants acquired the right to use the instant building with no fixed time limit set by the resolution of 1992. However, the lower court omitted its judgment.

(2) According to the record, the following facts are revealed.

The Defendants’ legal representative asserted to the following purport in the preparatory document dated March 11, 2019, stated on the date for the second pleading of the lower judgment. The instant building portion may be deemed a section for exclusive use, and even if not, it constitutes a section for partial common use. Article 14 of the Aggregate Buildings Act provides that “Matters concerning the interests of all sectional owners among the matters concerning the management of partial common use areas and those prescribed by the rules under Article 29(2) shall be determined by a resolution of all sectional owners’ assembly, and other matters shall be determined by a resolution of the assembly of all sectional owners who jointly use them.” As regards the instant building portion, the method of use was already determined by the resolution of all sectional owners’ assembly.

(3) In light of such factual relations, it is difficult to view that the Defendants asserted that the right to use the instant building was granted by the resolution of 1992 at the lower court, and thus, it is difficult to accept the first ground for appeal on a different premise. Furthermore, even if examining the records in light of the records, it cannot be deemed that the Defendants acquired the right to use the instant building by the resolution of 192 without setting a deadline for the instant building.

C. Whether to sue (Defendant company's ground of appeal)

In a performance suit, the plaintiff's standing to sue itself as a party, and the judgment is added to the judgment as to the propriety of the claim (see Supreme Court Decision 92Da11848 delivered on June 12, 1992).

The lower court, citing the first instance judgment, determined as follows. The Defendant Company asserted that the Plaintiff’s succession to the rights and obligations pursuant to the resolution in 1992 is not eligible to bring the instant lawsuit. However, the determination on standing to sue is included in the determination on the propriety of the claim, and thus

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on standing to sue.

4. Conclusion

Of the judgment below, the part of the claim for delivery of a building is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All remaining appeals are dismissed. It is so decided as per Disposition by the assent of all

Justices Lee Dong-won (Presiding Justice)