Where several persons co-own one parcel of land or one building when calculating the consent rate of the owner of the land or building pursuant to Article 16(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, requirements for deeming that the owner of the land or building consents to the establishment of the association can be deemed as the owner of the land or building

According to Article 28(1)2(a) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 27409, Jul. 28, 2016; hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), where the ownership or sectional ownership belongs to several co-ownerships, one representative of the several persons shall be calculated as the owner of the land, etc. Therefore, in calculating the consent rate of the owner of the land or building pursuant to Article 16(3) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13912, Jan. 27, 2016; hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), in order for the owner of the land or building to be deemed to have consented to the establishment of the association, it cannot be deemed that the appointed representative consents to the establishment of the association without the appointment of a representative.

Meanwhile, Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “the person whose location is unknown”) provides that the person whose resident registration number is not indicated at the time of being registered as the owner and whose address is different from the present address shall be excluded from the number of the owners of the land, etc., and the person whose location is not verified (hereinafter “the person whose location is unknown”), shall not be included in the number of the owners of the land, etc., and thereby smoothly proceed with the business by excluding the owners of the land, etc. whose intention is difficult to be confirmed from the persons subject to consent to establish an association in the procedure of consenting to the establishment of an association. However, if some of the co-owners of the land belonging to multiple co-owners are missing, the same is different from the case where the whereabouts of the sole owner is unknown, and thus, the number of the owners of the land or

Article 16(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13912, Jan. 27, 2016); Article 28(1)2(a) and 4 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Presidential Decree No. 27409, Jul. 28, 2016)

Supreme Court Decision 2012Du11041 Decided May 29, 2014 (Gong2014Ha, 1330)

Plaintiff 1 and one other (Attorney Lee Han-woo, Counsel for the plaintiff-appellant)

The head of Seodaemun-gu Seoul Metropolitan Government (Law Firm LLC, Attorneys Lee Jeong-young et al., Counsel for the plaintiff-appellant)

Hong-si Housing Reconstruction and Improvement Project Association (Law Firm Han-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Nu62977 decided July 23, 2015

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

The grounds of appeal are examined.

1. Article 16 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13912, Jan. 27, 2016; hereinafter “Urban Improvement Act”) provides that in order to obtain authorization for the establishment of a housing reconstruction project, at least 2/3 of sectional owners of each building in a housing complex, at least 1/2 of the area of land, at least 3/4 of the entire sectional owners in a housing complex, and at least 3/4 of the area of land within a housing complex, and landowners who own at least 3/4 of the area of land in a housing complex are included in a rearrangement zone (Article 2). Notwithstanding the provisions of paragraph (2), if an area which is not a housing complex is included in a rearrangement zone, the consent of at least 3/4 of the owners of land or buildings within an area which is not a housing complex, and landowners who own at least 2/3 of

However, according to Article 28(1)2(a) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 27409, Jul. 28, 2016; hereinafter “Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”), where ownership or sectional ownership belongs to several co-ownerships, one representative of such several persons shall be calculated as the owner of the land, etc. As such, in calculating the ratio of consent of the owner of the land or building pursuant to Article 16(3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, if several persons co-ownership one parcel of land or one building, the owner of the land or building must be deemed to have consented to the establishment of the association with the consent of all the co-owners, or all the co-owners’ consent to the establishment of the association without the appointment of a representative.

Meanwhile, Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “the person whose location is unknown”) provides that the person whose location is not verified should be excluded from the number of the owners of the land, etc. in cases where the address is different from the present address at the time of being registered as the owner in the certified copy of the register of land, the certified copy of the register of land, the land register, and the land register of the building and the building management ledger, and where the address is not identified (hereinafter “the person whose location is unknown”). This is to facilitate the progress of business by excluding the owners of the land, etc. whose intention is difficult to be verified from the persons subject to consent to establish the association in the procedure of consenting to the establishment of the association (see Supreme Court Decision 2012Du1041, May 29, 2014). However, inasmuch as it is different from the case where the whereabouts of the sole owner of the land belonging to several names is unknown, the sole owner of the land or the

2. According to the reasoning of the judgment below, the land (location omitted) located in the Seoul Seodaemun-gu Seoul Metropolitan Area (hereinafter “instant land”) is owned by three persons, including Nonparty 1, Nonparty 2, and Nonparty 3. The fact that Nonparty 1’s resident registration number is not indicated in the copy of the register and the book of the register of the land of this case, and the fact that Nonparty 1’s resident registration number is not indicated in the civil lawsuit filed by the Defendant’s Intervenor against Nonparty 1 and eight, and that the written complaint, etc. was served by public notice.

Examining these facts in light of the legal principles as seen earlier, the agreement of the establishment of the association is impossible from the beginning because part of the co-owners is unknown. Therefore, the consent rate should be calculated by subtracting the land of this case from the land or building owner subject to calculation under Article 28(1)4 of the Enforcement Decree of the Act on the Maintenance of Urban Areas and Dwelling Conditions

3. Nevertheless, the lower court determined otherwise that one landowner or building owner should be calculated on the instant land because Nonparty 2 and Nonparty 3, who is another co-owner of the instant land, are not known. In so determining, the lower court erred by misapprehending the legal doctrine on the method of calculating the number of consenters to establish an association in the housing reconstruction project, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)