Plaintiff 1 and two others (Attorney Park Sung-hoon, Counsel for the plaintiff-appellant)

king New Zealand District Housing Redevelopment and Improvement Project Association (Law Firm Han & Han, Attorneys Park Il-young et al., Counsel for the plaintiff-appellant)

May 20, 2009

Seoul Administrative Court Decision 2008Guhap42765 Decided February 17, 2009

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The part of the management and disposal plan authorized by the head of Seongdong-gu Seoul Metropolitan Government on July 22, 2008 that the defendant determined the plaintiffs as joint buyers shall be revoked (the written complaint seems to be written in writing on July 31, 2008).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) deleted the part of the 7th 10 to 13th 13th of the grounds for the judgment of the court of first instance; and (b) other than adding the following determination as to the Plaintiff’s assertion, it is identical to the part of the grounds for the judgment of the court of first instance; and (c) thus, it shall be cited in accordance with Article

A. The defendant's assertion

Article 5 of the Addenda to the Ordinance of this case exceptionally recognizes the status of a person eligible for separate parcelling-out as to the house which has completed the registration of division by "the conversion of a multi-household into a multi-household house". Article 7 of the Addenda to the Ordinance of this case exceptionally recognizes the status of a person eligible for separate parcelling-out as to the "multi-family house which has completed the registration of shares or sectional ownership by household". Since the plaintiffs only completed the registration of sectional ownership on the building of this case, which is a multi-family house, and did not convert into a multi-household house, it should be examined whether Article 7 is applicable, not Article 5 of the Addenda. The building of this case cannot be deemed to fall under a multi-family house which was completed the registration of shares or sectional ownership before January 15, 1997,

B. Relevant statutes

former Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Article 14 (Change of Use)

(1) Any alteration of the use of a building shall conform to the standard of construction for the altered use.

(2) Any person who intends to change the use of a building, the use of which has been approved pursuant to Article 18, shall report it to the head of a Si/Gun/Gu under the conditions as prescribed by Presidential Decree: Provided, That in cases of changing the use of a building falling under the same facility group pursuant to the provisions of paragraph (3), or in cases as prescribed by Presidential Decree

(3) The facility group shall be as follows, and the use of buildings falling under such group shall be prescribed by Presidential Decree:

1. Business and sales facility group:

2. Cultural and assembly facility group:

3. Industrial facility group:

4. Educational and medical facility group:

5. Residential and business facility group:

6. Other facility group as prescribed by the Presidential Decree.

Enforcement Decree of the former Building Act (amended by Presidential Decree No. 19466 of May 8, 2006)

Article 14 (Change of Use)

(4) The uses of buildings falling under the facility group of each subparagraph of Article 14 (3) of the Act shall be as follows:

5. Residential and business facility group:

(a) Single houses;

(b) Apartment houses;

(c) Business facilities;

(d) Public facilities.

Act on the Ownership and Management of Aggregate Buildings

Article 61 (Application for Registration at Time of Refusal of Registration)

(1) When the competent authority has refused a registration of the registry under this Act, the said applicant may apply for registration to the competent registry with a document attached thereto within fourteen days from the date of receiving the notification under Article 60 (2).

(2) The provisions of subparagraph 10 of Article 55 and Article 56 (1) and (2) of the Registration of Real Estate Act shall not apply to an application for registration under paragraph (1).

former Registration of Real Estate Act (amended by Act No. 8922 of March 21, 2008)

Article 56-2 (Registration Officer's Authority to Investigate)

(1) A registrar may, upon receipt of an application for registration of the building partitioning one unit of building, investigate the matters concerning the indication of such building, if necessary.

(2) When it is deemed necessary to conduct the investigation under paragraph (1), a public official may investigate the building concerned, and request the owner of the building and other interested persons to submit documents, and ask them questions. In such cases, the public official concerned shall carry a certificate indicating his/her authority and present it to

Enforcement Regulations of Registration of Real Estate

Article 73-2 (Substantial Examination of Partitioned Buildings)

(1) The investigation under the provisions of Article 56-2 (1) of the Act may be conducted only when there is a doubt that the relevant building is not a building under the provisions of Article 1 of the Aggregate Buildings Act, due to the details of attached documents to the application, written notification, etc.

(2) In case where an application for a registration of a building partitioning one unit of building is made under Article 61 (1) of the Aggregate Buildings Act, a registrar shall investigate the matters concerning an indication of such building: Provided, That the same shall not apply to the case where it is evident that the building is not a building under Article 1 of the Aggregate Buildings Act by the application and its attached documents.

Article 73-3 (Order)

A registrar may, if deemed necessary for the investigation under the provisions of Article 73-2, receive the assistance of a person with specialized knowledge.

Article 73-4 (Preparation, etc. of Survey Reports)

(1) A registrar shall, where he has conducted an investigation under Article 73-2, prepare a written investigation specifying the results of investigation, such as the structure, partitioning status and area of a building.

C. Determination

Therefore, in determining whether the plaintiffs are eligible for parcelling-out, it should not be immediately excluded from the application of Article 5, on the ground that Article 7 of the Addenda of this case and Article 7 apply only to only one of the provisions of Articles 5 and 7 of the Addenda of this case. However, according to the former Building Act and the Enforcement Decree of the Building Act applied at the time when the plaintiffs completed the registration of sectional ownership of the building in this case, it is not necessary to report to the head of the Si/Gun/Gu when they want to change the purpose of the building because they fall under the same facility group, and only the application for change of the entries in the building ledger was required. However, if the office of administration refuses the application for change as a sectional building on the building ledger, the applicant can apply for the registration of sectional ownership in accordance with the relevant provisions of the Act on the Ownership and Management of Aggregate Buildings, the Registration of Real Estate Act, and the Registration of Real Estate Act. In light of the above, it is reasonable to view that the above multi-household house is a multi-household house with the reason that it can not be included in the multi-household building register.

2. Conclusion

Therefore, the plaintiffs' claim of this case shall be accepted in its entirety on the grounds of its reasoning, and the judgment of the court of first instance is just in its conclusion, and the defendant's appeal against the plaintiffs is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-Hun (Presiding Judge)