[1] Whether the sectional owner of a specific part of a building in a mutual title trust relation or sectionally owned co-ownership relation can seek a partition of co-owned property as to the whole building (negative)

[2] In a case where a building with physically divided floors was newly constructed and the first floor was sold in lots among several stores, and the basement and the second and third floors were sold separately, and a co-owned share registration was completed at a ratio corresponding to the sale size or the sale size of the whole building area to the buyers or buyers without registration of partition, the case holding that the sectional owners of each floor of the above building cannot claim a partition of co-owned property as to the whole building since mutual title trust relation or sectionally owned co-ownership relation exists

[3] The method of resolving the sectionally owned co-ownership relationship of a building

[4] In a case where a mutual title trust relation or sectionally owned co-ownership relation is established among sectional owners of each floor of the building by constructing one building physically divided into several stores, and the first floor is divided into several stores and sold in lots, and the basements and the second and third floors are sold separately, and a co-ownership registration is completed at a ratio corresponding to the size of parcelling-out or the selling area out of the total size of the building to the buyers or buyers, the case holding that sectional owners of the first floor can claim a partition of co-owned property against the first floor regardless of whether the sectionally owned co-ownership relation with the building is terminated

[5] In a case where only the land was awarded in the auction procedure for partition of co-owned property pursuant to a final judgment ordering auction partition as to the land only after separating it from each floor of the building which is the object of sectional ownership, whether the successful bidder acquires ownership of the land (negative)

[1] In the mutual title trust relation or sectionally owned co-ownership relation, the sectional owner of a specific part of a building can seek implementation of the share transfer registration procedure based on the cancellation of title trust as to the specific part against the person holding a share registration in a trust relation, but may not seek partition of co-owned property as to the whole building.

[2] In a case where a building with physically divided floors was newly constructed and the first floor was sold in lots among several stores, and the basements and the second and third floors were sold separately, and a co-owned share registration was completed at the proportion corresponding to the size of sale or the sales size of the whole building area to the buyers or buyers without registration of partition, the case holding that the co-owned owners of each floor of the above building cannot claim a partition of co-owned property as to the whole building on the ground that the co-owned owners of each floor of the above building was in mutual title trust relation or sectionally owned co-ownership relation, in light of the facts that only the first floor was used for the first floor and the second and third floors were used for the purchase of the underground floor and the second and third floors were used for the second floors

[3] The sectional owners of each floor of a building may terminate the mutual title trust between the owners of other floors, while completing the conversion registration procedure of the building ledger and the registration procedure of the division registration of the register as a sectioned building, and resolve the sectionally owned co-ownership relationship of the building by way of mutually transferring the entire co-ownership shares entrusted to each floor.

[4] In a case where a mutual title trust relation or sectionally owned co-ownership relation is established among sectional owners of each floor of the building by constructing one building physically divided into several stores, and the first floor is divided into several stores and sold in lots, and the basements and the second and third floors are sold separately, and a co-owned share registration is completed at a ratio corresponding to the size of parcelling-out or the sales area out of the total size of the building to the buyers or buyers, the case holding that sectional owners of the first floor can seek co-owned property partition of the first floor regardless of the resolution of sectionally owned co-ownership relation with the building

[5] According to Article 20 (2) of the Act on the Ownership and Management of Aggregate Buildings, a sectional owner cannot dispose of the right to use site separately from the section for exclusive use, barring any special circumstance. The disposition violating this provision is null and void even if it follows the procedure of partition of co-owned property by the court. Thus, even if only the site is purchased in the auction procedure of partition of co-owned property which ordered an auction partition as to only the site separately from each floor of the building which is the object of partitioned ownership, the purchaser cannot acquire the ownership

[1] Article 103 of the Civil Act / [title trust] Articles 262 and 268 (1) of the Civil Act / [2] Article 103 of the Civil Act / [title trust] Articles 262 and 268 (1) of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 103 of the Civil Act / [title trust] Articles 262 of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [4] Article 103 of the Civil Act / [title trust] Articles 262 and 268 (1) of the Civil Act, Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [5] Article 20 (2) of the Act on the Ownership and Management of Aggregate Buildings

[5] Supreme Court Decision 2009Da26145 decided Jun. 23, 2009 (Gong2009Ha, 1187)

Plaintiff (Attorney Lee In-bok et al., Counsel for plaintiff-appellant)

Defendant 1 and 27 others (Attorney Lee Jae-in, Counsel for the defendant-appellant)

Daegu High Court Decision 2005Na10426 decided Nov. 10, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. In a case where two or more persons agree to divide ownership among one building, the location and size of which are specified, and which are independent in structure and use, and the registration is made at the proportion corresponding to the size of each sectional ownership for convenience, the mutual title trust relation between co-ownership owners or sectionally owned co-ownership relation as to the building is established (see Supreme Court Order 2000Ma2633, Jun. 15, 2001). If the specific part is transferred entirely and the co-ownership registration is completed accordingly, the mutual title trust relation is succeeded to. As such, the sectional owner of a building can seek a co-ownership registration procedure against the person who has a share registration in a mutual title trust relation or sectionally owned co-ownership relation against the specific part against the person who has a share registration in a trust relation, and can not seek a partition of co-owned property as to the whole building.

According to the reasoning of the judgment below, the non-party 1 constructed the building of this case physically divided each floor on the site of this case, and sold the building of this case by dividing it into 64 stores, and sold the underground floor and the second and third floors separately. The non-party 1 sold the building of this case without registering it by dividing it into a sectioned building. The non-party 1 sold or sold the building of this case and registered a co-ownership share in the proportion of the sale area or the sale area among the whole area of the building. The non-party 1 used only the first floor for the purchaser of the first floor of this case and the second and third floors only for the first floor, and the purchaser of the second floor of this case used only the second floor and the second and third floors only for each underground floor, and the co-ownership share registration was completed accordingly, and the plaintiff and the defendants (the co-ownership share of the deceased non-party 2 was inherited in the name of the defendant 17, which is the litigant's lawsuit, and the plaintiff and the second and third floors of this case are used as of this case.

In light of the above facts in light of the legal principles as seen earlier, the persons who bought or bought part of each floor of the building of this case from the non-party 1 partitioned ownership, but only the registration was completed at the proportion corresponding to the area of sectional ownership of each floor for the entire building for convenience, and a mutual title trust relation or sectionally owned co-ownership relation was established among sectional owners of each floor. The plaintiff and the defendants, who are sectional owners of each floor holding the final co-ownership registration title of the building of this case, have succeeded to the mutual title trust relation between the owners of each floor of this case since the specific parts owned by each floor of this case were transferred before the registration was completed, and the mutual title trust relation was succeeded to between the owners of each floor of this case. Thus, the plaintiff and the defendants who are sectional owners of each floor holding the final co-ownership registration title of the building of this case can not be permitted

In the same purport, the court below's dismissal of the plaintiff's claim for partition of co-owned property on the building.

The court below did not err in the misapprehension of legal principles as to sectionally owned co-ownership relation of buildings as otherwise alleged in the ground of appeal

The part of the ground of appeal on the premise that the court below determined that a sectionally owned co-ownership relation was established inside each floor of the building of this case, and that such determination by the court below was erroneous, is not accepted as it originated from the misunderstanding of the contents of the judgment below.

2. The attached cases: (a) the sectional owners of each floor of the instant building terminate mutual title trust with the owners of other floors; (b) the sectional owners of the instant building terminate mutual title trust; and (c) complete the conversion registration procedure of the building ledger and the separate registration procedure of the registry with respect to the instant building as a sectioned building; and (d) transfer one another’s co-ownership shares entrusted to each floor.

On the other hand, regardless of whether the sectional co-ownership relation as to the building in this case has been settled, the sectional owners of the first floor of this case including the plaintiff can make co-owned property partition as to the first floor of this case. First of all, in case where co-owned property partition is made through auction division method without resolving the sectional co-ownership relation between each floor of the building in this case, the successful bidder will succeed to the sectional co-ownership relation as to the building in this case. In addition, in case where the sectional co-ownership relation between each floor of this case is terminated by the sectional co-ownership relation as the sectional co-ownership relation as to the building in this case, the successful bidder of the first floor will acquire the sectional co-ownership right as to the first floor by the registration of sectional ownership. In any case, co-ownership of the building in this case, which is the right to use the site according to the co-ownership of the first floor of this case which is the object of sectional ownership, shall comply with the disposition of the first floor as a matter of principle, under Article 20(1) of the Act

In addition, according to Article 20 (2) of the Act on the Ownership and Management of Aggregate Buildings, a sectional owner cannot dispose of the right to use site separately from the section for exclusive use, barring any special circumstance, and the disposition violating the right to use site is null and void even if it follows the procedure of partition of co-owned property by the court (see Supreme Court Decision 2009Da26145, Jun. 23, 2009). Thus, even if the land is awarded only the land of this case in the auction procedure of partition of co-owned property which is conducted in accordance with the final judgment ordering an auction partition as to only the site of this case separately from each floor of the building of this case which is the object of partitioned ownership, the successful

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)