2012 Gaz. 214604 Gaz.

Korea Land and Housing Corporation

LH head office 172 Yamaaro-ro in Seongbuk-gu, Sungnam-si, Gyeonggi-do

Daegu Seo-gu Office of Service 476-7 (Housing Management Corporation) Dong-dong 476-7

Transmission of the President Lee Jong-chul

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellee] Defendant 1

[Defendant-Appellee] Korea District Court Decision 200

Does00

Gyeong-do, Gyeong-do, Pyeong-gun 7 degrees

May 31, 2013

November 22, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

In order for the Defendant to order the Plaintiff to indicate “the indication of the attached property” and pay the amount calculated by the ratio of KRW 225,00 per month from October 21, 2012 to the completion date of delivery of the above building.

1. Basic facts

A. On December 1, 2009, Nonparty Korea National Housing Corporation (Korea National Housing Corporation was dissolved at the same time as the Plaintiff was established, and the Plaintiff comprehensively succeeded to the property, claims, debts, and other rights and obligations of the Korea National Housing Corporation pursuant to Article 8 of the Addenda to the Korea National Housing Corporation Act; hereinafter referred to as the “Plaintiff”) leased the buildings stated in the purport of the claim to the Defendant on December 1, 2009 (hereinafter referred to as the “instant lease”). The main contents of the said lease agreement (Evidence A) are as follows.

Article 1 (Lease Deposit, Rent, and Term of Lease) (1) A lessor shall lease the lease deposit, rent, and term of lease of the said house to the lessee with the following set forth.Article 10 (Cancellation and Termination of Lease Contract) (1) If a lessee commits an act falling under any of the following subparagraphs, the lessor may cancel or terminate this contract, or refuse to renew the lease contract:

Article 8 (Payment of Rent, etc. following Cancellation or Termination of Lease Contract) (1) In the event that a lease contract is canceled or terminated due to any cause falling under any subparagraph of Article 10 of the General Conditions of the Contract, the lessee shall order the lessor to cancel or terminate the lease contract, and shall pay all kinds of payments such as rent and management expenses from the date of cancellation or termination to the date of termination of the lease contract.

B. The Defendant completed the registration of initial ownership on August 27, 2010 with respect to the 30 meters of the detached house from the 57th floor of the ground wall structure and the 57th floor of the Gyeongdong-gun, Gyeongdong-gun, Gyeongdong-gun (hereinafter “instant house”), and completed the registration of initial ownership on August 27, 2010, and completed the registration of ownership transfer to Kim Un-style on the same day.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 6, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

The Defendant acquired the instant house during the term of the instant lease agreement, which constitutes grounds for termination under Article 10(1)7 of the General Conditions of the instant lease agreement, as the case where he/she owns another house during the term of the lease.

3. Determination

A. According to Article 10(1)7 of the General Conditions in the instant lease agreement, the term of lease constitutes grounds for termination where a person owns another house during the term of lease: Provided, That this does not include cases where a person owns another house due to unavoidable reasons such as inheritance, judgment, marriage, etc., and disposes of the relevant house within six months from the date of notification as disqualified as a result of computer search.

(b) Fact of recognition;

1) On March 28, 1989, the Defendant acquired ownership of 632-1 225 m25 m2 (hereinafter “instant land”). At the time of acquisition of ownership, the instant land had not been registered on the ground at the time of acquisition of ownership.

2) Around 1994, Nonparty Kim 00 newly constructed the instant building and transferred it to Asia Kim 00.

After entering into a contract with Kim○-○ to purchase the instant land along with the instant land, the Defendant resided in the instant housing from February 12, 1992 to February 26, 2006. Meanwhile, the ordinary building register (No. 7-2) of the instant housing was registered as the first owner.

3) On December 27, 2005, the Defendant sold the instant land to Nonparty Kim○-○ by means of a brokerage of a joint licensed real estate agent, in KRW 63,00,000,00. The special terms and conditions of a sales contract (Evidence No. 1) include that a single house, which is not in the land building ledger, is also sold together.

4) Lidong-gun operated an urban planning road construction project (hereinafter “the project in this case”) between the main and three complexes, and the land in this case and the housing in this case were included in the project site. Kim Young-gun requested the Defendant to preserve ownership of the instant housing in order to receive compensation under the Act on Acquisition of and Compensation for Land, etc. for Public Works according to the project in this case. Accordingly, on August 27, 2010, the Defendant completed the registration of preservation of ownership on August 27, 2010, and completed the registration of ownership transfer to Kim ○○ on the same day. Lidong-gun paid compensation for losses to Kim○○○, and on March 25, 2011, acquired ownership of the instant housing in whole and in part of the instant land incorporated into the project in this case as part of the instant land and the instant housing due to an agreement on the acquisition of public land.

[Reasons for Recognition] Facts without dispute, Eul evidence Nos. 1, Eul evidence Nos. 6, Eul evidence Nos. 7-1 through 3, Eul evidence Nos. 8 and 10, Eul evidence Nos. 12-1 and 2, and the purport of the whole pleadings.

1) First, we examine whether the Defendant acquired the ownership of the instant house at the time of the instant lease agreement. Even if the assignee of an unregistered building has not completed the registration of ownership transfer, it is difficult to recognize any comprehensive right or legal status, such as the ownership under the current law or the right to use and profit-making equivalent to the ownership, unless it has been completed (see, e.g., Supreme Court Decisions 94Da53006, Jun. 14, 1996; 2006Da49000, Oct. 27, 2006; 2005Da41153, Jul. 10, 2008). Therefore, the Defendant cannot be deemed to have acquired the ownership of the instant house at the time of the instant lease agreement, since the fact that the Defendant acquired the unregistered building and did not have completed the registration of ownership transfer while completing the registration of ownership transfer.

2) Next, we examine whether the Defendant acquired the instant house during the instant lease agreement period. As seen earlier, the Defendant acquired the instant house during the instant lease agreement period on August 27, 2010. However, in light of the following circumstances acknowledged by the aforementioned facts, the Defendant’s acquisition of the instant house during the instant lease agreement period constitutes “cases where the Defendant disposes of the instant house within six months from the date of being notified of the disqualified person as a result of computer search.” Therefore, the Defendant’s acquisition of the instant house does not constitute grounds for termination as stipulated in the main sentence of Article 10(1)7 of the General Conditions of the instant lease agreement under the instant lease agreement, and thus, the Plaintiff’s assertion is without merit.

A) On December 27, 2005, the Defendant purchased the instant land and the instant house to Kim○○ on December 27, 2005, but failed to transfer the ownership along with the instant land due to the unregistered relation.

B) According to Article 65 of the Registration of Real Estate Act, a person registered as the first owner in the land cadastre, forest land cadastre, or building ledger, his/her heir, or other general successor, etc. may apply for registration of preservation of ownership. In order for Kim○○ to obtain compensation for the instant housing to be incorporated into the instant project, ownership transfer is necessary regarding the instant housing, and registration of preservation of ownership cannot be applied under his/her own name, and registration of preservation of ownership under the name of the Defendant cannot be made (see Supreme Court Order 86Ma696, Sept. 27, 196).

C) Of the instant lease agreement, the proviso of Article 10(1)7 of the General Conditions of the Contracts ought to be “Disposal of the pertinent house within 6 months from the date of being notified of the disqualified person as a result of the computerized search. The Defendant sold the instant house before being notified of the registration of ownership transfer under the name of Kim Unun-style as disqualified on the date of completion of the registration of ownership preservation.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-nam