2012 Gohap541267 Return of unjust enrichment, etc.

1. Jin Investment Co., Ltd.;

2. Mutain Investment Co., Ltd.

3. Scene Investment Co., Ltd.;

4. Consultation on solarity of a stock company;

5. A non-investment company;

6. KS real estate asset management company;

7. Rosterland.

8. A;

9. B

10. C

11. D

12. E;

13.F

14. G

1. H:

2. 1

3. J;

4. K;

5. L.

6. M.

7. N;

8.O;

9. P;

10. Qua;

11. R:

12. S;

13. T;

14. U;

15. V

16.W;

17. X

18. Y

19. Z;

20. AA

21. AB

22. AC

23. AD;

24. AE;

25. AF

26. AG

27. AH

28. AI;

29. AJ

30. AK;

31. AL;

32. AM;

33.N;

34, AO

35. AP;

36. A Q Q

37. AR

38. AS

39. AT

40. AU

41. AV;

42. AW;

43. AX;

44. AY;

45. AZ;

46.BA

47.B

48.BC

49.BD

50. BE

51.BF

52.BG

53. BH

54.BI

5. BJ

56. BK

57. BL

58.M

59.BN

60. BO

61.BP

62. B Q

63.BR

64.BS

65. BT

66.BU

67. BV

68. BW

69. BX

70. BY

November 13, 2013

December 27, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Attached Form 2 is as stated in the purport of the claim.

1. Basic facts

(a) Lease relationship;

1) Since September 16, 2002, the Jeju Real Estate Trust Co., Ltd. (hereinafter referred to as the "K non-Real Estate Trust Co., Ltd.") and the Jeju Industries Co., Ltd. (hereinafter referred to as the "Korea Industries") entered into a trust agreement with 1,858 households (hereinafter referred to as the "lease apartment of this case") that correspond to the public rental housing under Article 2 subparagraph 1 of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 18135, Mar. 17, 2004) that newly constructed the Jeju Industries on the BZ, and the CA ground of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 18135, Mar. 17, 2004).

2) On April 9, 2002, the K non-real estate trust obtained approval of the public announcement of invitation of occupants against homeless households residing in the time of leisure, and all the Defendants, a homeless householder, applied for occupancy in the first-come first-served order. From April 2002, the K non-real estate trust and the Defendants concluded a lease agreement with respect to each of the instant rental apartments from November 15, 2002, which set the lease term to five years from November 15, 2002.

3) On August 29, 2007, Western Co., Ltd., Ltd. (hereinafter referred to as the "Semando") purchased the instant rental apartment from the K non-real estate trust, succeeded to the status of the rental business operator of the K non-real estate trust, and completed the registration of ownership transfer on the instant rental apartment on November 30, 2007.

4) Since December 2007, Western-do entered into a lease agreement with the Defendants that extended the term of the above lease from around December 2007 (Provided, That Defendant BE, BF, and Q did not prepare a lease agreement again).

(b) Approval for conversion of rental apartments into parcelling-out;

In October, 2010, the Western Pream-si applied for approval for conversion to sale in lots with respect to 1,392 units of the rental apartment of this case to the female Mayor, and on October 12, 2010, the female Pream-si approved conversion to sale in lots with respect to 1,155 units including the Defendants among 1,392 units of the lease of this case (hereinafter referred to as the "approval for conversion to sale in lots in this case").

C. Relevant provisions of the Rental Housing Act and the Enforcement Decree of the Rental Housing Act

Revised Rental Housing Act (wholly amended by Act No. 8966, Mar. 21, 2008)

Article 21 (Preferential Conversion for Sale in Lots of Constructed-Rental Housing)

(1) Where a rental business operator constructs housing constructed after obtaining approval for a project plan under Article 16 of the Housing Act after the lapse of the period of mandatory lease, with funding from the National Housing Fund under Article 60 of the Housing Act, or makes conversion into parcelling-out of rental housing constructed on a housing site developed by a public project, he/she shall first make conversion into lots

1. A lessee who has resided in the relevant rental house from the date of occupancy to the date of conversion for sale in lots;

2. A lessee who, after moving into a constructed rental house, has come to own another house due to inheritance, judgment, or marriage, has disposed of such house and has become homeless at the time of conversion into parcelling-out;

3. A lessee who has acquired a right of lease under the proviso to Article 19 and is homeless at the time of conversion for sale in lots from the date of transfer.

4. A lessee who has been selected as an occupant on a first-come-served basis, and is homeless at the time of conversion for sale.

5. State agencies or corporations which are lessees of the relevant rental housing at the time of conversion for sale.

(3) Where a rental business operator (excluding the State, a local government, the Korea National Housing Corporation, or a local public corporation) intends to convert the constructed rental housing into parcelling-out pursuant to paragraphs (1) and (2), he/she shall submit the documents prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs to the head of a Si/Gun/Gu, and apply for approval

(4) The head of a Si/Gun/Gu shall, upon receipt of an application for approval for conversion for sale in lots, grant approval within 30 days. In such cases, the head of a Si/Gun/Gu shall approve the conversion price for sale in lots prescribed by Presidential Decree pursuant to paragraph (10), and shall not adjust or modify such price

(5) Where a rental business operator fails to apply for approval for conversion for sale in lots under paragraph (3) for at least one year after the lapse of the mandatory rental period under paragraph (1), default, bankruptcy and other cases prescribed by Presidential Decree, respectively, a lessee (where a council of lessees' representatives is organized, referring to the council of lessees' representatives) may apply for approval for conversion for sale in lots directly with consent of at least

(6) In cases falling under paragraph (5), a rental business operator shall cooperate in preparing an application document for approval for conversion for sale.

(7) Where a lessee fails to comply with conversion for sale in lots for at least six months even after a rental business operator has obtained approval for conversion for sale in lots under paragraph (4), the relevant rental business operator may sell the relevant rental house to a third party, as prescribed by Ordinance

(8) Where a rental business operator fails to comply with conversion for sale for at least six months even after a tenant has obtained approval for conversion for sale in lots under paragraph (4), a tenant may request sale based on the conversion conversion price approved.

Article 32 (Standard Lease Agreements, etc.) (This Article was amended by Act No. 9541 on March 25, 2009)

(5) Where a rental business operator conducts conversion for sale in lots under Article 21, he/she shall be deemed to have properly leased a lessee until the period of application for conversion for sale in lots expires after approval for conversion for sale in lots under Article 21 (4), notwithstanding the fact that the period of lease expires. In such cases, the period of application for

Article 3 (Applicability to Approval for Conversion for Sale in Lots of Constructed-Rental Housing)

The amended provisions of Article 21 shall not apply to a rental business operator who has submitted a plan for conversion for sale in lots under the previous provisions at the time this Act enters into force, or has applied for permission for conversion for sale in lots: Provided, That the same shall not apply where the rental business operator cancels such plan within six months after this Act enters into force

【Ground of recognition】 The fact that there has been no dispute, entry of Gap 2 through 5, and 7 evidence (including each number), the purport of whole pleadings

2. The parties' assertion

A. The plaintiffs

Until June 2012, the Defendants did not file an application for conversion for sale in lots for the leased apartment in this case, and therefore, the west-do sold the leased apartment in this case to the Plaintiffs by deeming that there was no lessee who wants to conversion for sale in lots no longer than June 2012. Accordingly, the Plaintiffs who acquired the ownership of the leased apartment in this case by serving a copy of the complaint in this case, issued a standard lease contract with the Plaintiff pursuant to Article 10 (1) 9 of the Standard Lease Contract and Article 26 (1) 10 of the Enforcement Decree of the Rental Housing Act, and thus, the lease contract with the Defendants was terminated. Accordingly, the Defendants are obligated to deliver to the Plaintiffs the households possessed by each of the rental apartment in this case.

B. The Defendants

The notice of the application for conversion for sale in lots is null and void in violation of Article 32(5) of the Rental Housing Act. As such, since the Defendants’ right to preferential purchase in lots (hereinafter “the right to preferential purchase in lots”) did not expire. The west-do sold the instant rental apartment to the Plaintiffs in violation of the aforementioned Rental Housing Act, which is a mandatory provision, even though it is impossible to sell the instant rental apartment without going through due procedures for sale in lots under the Rental Housing Act, and thus, the Plaintiffs did not acquire the ownership. Accordingly, the Plaintiffs did not have the right to seek delivery against the Defendants.

3. Determination

A. Whether the plaintiffs acquired ownership

1) Whether the defendants' preferential right to purchase shares has expired

A) Article 21(1) of the Rental Housing Act provides, “Where a rental business operator sells a rental house for sale in lots after the expiry of the mandatory rental period, a lessee who is homeless at the time of conversion in lots shall be converted into lots to any of the following lessees.” 4. Where an occupant is selected on a first-come first-served basis as to each of the leased apartments, the Defendants was a lessee of the leased households at the time of the approval for conversion in lots, and the fact that the Defendants were the lessee at the time of the approval for conversion in lots, and that there was the approval for conversion in lots for sale in this case for rental apartments at the time of the expiration of the mandatory rental period is recognized as above. According to the purport of the evidence No. 7-1 and No. 2 as well as the entire arguments, the Defendants are homeless at the time of the conclusion of the pleadings in this case. Accordingly, barring any special circumstance, the Defendants have the right to preferentially purchase the relevant leased apartment out of the pre-sale conversion price stipulated under Article 21(4) of the Rental Housing Act:

B) However, Article 21(7) of the Rental Housing Act provides that where a lessee fails to comply with a conversion for sale for at least six months even after a rental business operator obtained approval for conversion for sale from the market, etc., a rental business operator may sell the relevant rental house to a third party according to a specific procedure. We examine whether the Defendants’ preferential right to conversion for sale has expired under the said provision

The purpose of the Rental Housing Act is to stabilize the residential life of the people (Article 1), and the provisions of the Rental Housing Act on the right to pre-sale conversion of lessees is to ensure the lessee’s preferential right to purchase rental housing in a stable manner. The Rental Housing Act provides procedures for the tenant’s application for approval of conversion for sale in lots and provides for the tenant’s approval of conversion for sale in lots, so if the rental business operator fails to faithfully carry out conversion for sale in lots even after approval of conversion for sale in lots, the tenant can not be aware of the fact that approval of conversion for sale in lots has not been granted if the rental business operator fails to comply with the requirements for selling rental housing to a third party for sale in lots for more than 6 months (see, e.g., Supreme Court Decision 9Da9899, Sept. 9, 200).

According to the health stand and evidence Nos. 5-1 through 5 as to the instant case, Seogrishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishishish 24, 201, and it is possible to first recognize the execution period of the contract to be converted from 31.21 to 14.214 to 214.

According to the above facts, even if the publication of the above notice or notice constitutes an offer for a contract for sale in lots against the Defendants, if the notice or notice is not given within the period for concluding the contract for sale in lots set in advance, it constitutes an offer setting a period for acceptance. Therefore, the above offer of the letter of notice or notice shall be deemed null and void by the expiration of the period for concluding the contract for sale in lots set forth in the notice or notice.

Therefore, it is apparent that the offer of the sales contract to the Defendants of Seocho-do is effective only within the period of concluding the first sale contract as stipulated in the public notice or notice, and it does not reach six months even if the period of concluding the sales contract was added up. Thus, even if the Defendants did not accept the above subscription, it does not constitute "where the lessee does not accept the rental business operator's subscription for more than six months" under Article 21 (7) of the revised Rental Housing Act. Even if the period of concluding the sales contract is not the period of signing the first sale contract as stipulated in the public notice or notice, even if the Defendants concluded the sales contract with other lessee, it is merely a result of the lessee's new subscription and consenting to the delivery, and thus, it cannot be deemed that the Defendant's subscription to the Defendants of Seocho-do remains effective for more than six months on account of such circumstances.

Therefore, the defendants' preferential right to convert the sale did not expire.

2) Validity of the plaintiffs' transfer of ownership

According to Article 21 of the Rental Housing Act, in cases where a rental business operator sells a rental house after the expiration of the mandatory rental period, he/she shall preferentially sell it to a lessee who is a homeless at the time of sale. However, in such cases, just because he/she sold it to a third party who is not a person subject to preferential sale in violation of the above Act and subordinate statutes does not become null and void (see Supreme Court Decision 97Da3606, Jun. 13,

Although the Defendants’ preferential right to purchase the leased apartment in this case was not extinguished, it violated Article 21 of the Rental Housing Act to sell the leased apartment in this case to the Plaintiffs. However, according to the above legal principle, this circumstance does not immediately constitute a ground to invalidate the registration of ownership transfer of the Plaintiffs. Therefore, the Plaintiffs acquired the ownership of the leased apartment in this case.

However, according to the evidence No. 3-1 through No. 70, the plaintiffs can be recognized that they were to succeed to the whole lease agreement between the parties at the time of purchase of the rental apartment in this case. Thus, while acquiring the ownership of the rental apartment in this case, the plaintiffs succeeded to the status of lessor against the defendants from the Western Posa when acquiring the ownership of the rental apartment in this case.

B. Whether the lease contract is terminated

1) Relevant provisions of the lease agreement

Since the revision on December 27, 1993, the Rental Housing Act stipulates that any person who intends to enter into a lease contract for rental housing shall use a standard lease contract prescribed by the Ministry of Land, Infrastructure and Transport (current Ministry), and the standard lease contract prescribed by the attached Table of the Enforcement Rule of the Rental Housing Act may be cancelled, terminated, or renewed by the lessor after the revision on March 30, 2010, when the lessee fails to file an application for conversion for sale in lots within the period of application for conversion in lots under Article 32(5) of the Act.

On the other hand, Article 1 of the common terms and conditions of a lease agreement entered into by the Defendants with the Seocho-don or K non-Real Estate Trust, and Article 1 of the common terms and conditions of a lease, ① A lessor may change the terms and conditions of a lease every one year from the commencement date of the lease in a certain case during the term of a lease, ② A lessee shall be notified by means of a written notice or a notice on bulletin board of apartment buildings after filing a report on the change of the terms and conditions of a lease under Article 16 of the Rental Housing Act. ③ A lessee shall make a re-contract in accordance with the terms and conditions notified by the lessor if the lessor reported the terms and conditions of the lease,

2) Whether the termination of the lease agreement or the rejection of renewal is legitimate

A) According to the evidence No. 2-1 to No. 70, a part of the Defendants concluded a lease agreement and a renewal contract before the amendment that “where they fail to apply for parcelling-out within the period of application for parcelling-out under Article 32(5) of the Act” was included in lessor’s reasons for cancellation or renewal of the lease agreement. As such, insofar as the Defendants did not change the terms and conditions of lease in accordance with the special terms and conditions of the lease agreement, it is not a reason for cancellation or renewal as stipulated in the contract. However, if the Rental Housing Act, which was wholly revised on March 21, 2008, was newly established as the grounds for cancellation, termination, and renewal of the lease agreement for the rental housing, and the standard lease agreement provides for the reasons for cancellation, termination, and renewal as stipulated in the Enforcement Decree of the Rental Housing Act which was delegated by the said Act, for the purpose of the lessee’s cancellation or renewal of the lease agreement, it can be interpreted that the lessee did not have any significant reasons for cancellation or renewal of the lease agreement within the period of the lease agreement.

B) With respect to the Defendants who entered into a lease contract or re-contract after the amendment of the Rental Housing Act on March 30, 2010, if they did not file an application for conversion for sale in lots within the period of application for conversion for sale in lots, the Plaintiffs may refuse to cancel or renew the lease contract. However, in order to constitute grounds for termination or renewal as stipulated in the above provision, the period of application for conversion for sale in lots under the Rental Housing Act should be guaranteed. However, as seen earlier, Article 32(5) [Article 32(5) of the Rental Housing Act (wholly amended by Act No. 9541, Mar. 25, 2009)] of the Rental Housing Act provides that the amended provisions of Article 32(5) of the Addenda of the Rental Housing Act (Act No. 9541, Mar. 25, 2009) provide that the amended provisions of Article 32(5) do not apply from the first application for conversion for sale in lots within the period of 90 days prescribed by the Rental Housing Act.

The plaintiffs asserted that Article 32 (5) of the Rental Housing Act does not apply to the defendants whose term of lease expires within 90 days from the date of approval for conversion for sale in lots. However, the above provision aims to strengthen lessee protection by granting the period of application for conversion for sale in lots after 90 days or more from the date of approval for conversion for sale in lots of rental housing and allowing the lessee to be regarded as a legitimate lease even if the term of lease expires (see the reason of revision of the Ministry of Government Legislation). Therefore, it is reasonable to deem Article 32 (5) of the Rental Housing Act to have determined the period of application for conversion for sale in lots to prevent the lessee from exercising the right to preferential conversion because the lessee loses lessee status due to the expiration of the term of lease at the time of conversion for sale in lots.

C) Therefore, since the Plaintiffs’ termination of the lease agreement with the Defendants or the grounds for refusing to renew the lease agreement are not recognized, the lease agreement between the Plaintiffs and the Defendants was not terminated.

C. Sub-committee

As above, there is no ground for the Plaintiffs to terminate the lease agreement or to refuse the renewal thereof, so the Plaintiffs’ claim for the instant rental apartment based on the premise of termination of the lease agreement is without merit.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Han-young

Judges Lee Young-soo

Judge Noh Dong-dong

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.