Supreme Court Recognizes Customary Law 'Statutory Surface Rights' Even When Land and Building Owners Differ

[Asia Economy Reporter Kim Hyung-min] The Supreme Court en banc has ruled that statutory superficies under customary law can be recognized when the owner of land with a shared building on it changes.

On the 21st, the Supreme Court en banc overturned the lower court’s ruling that had favored the plaintiff in the appeal trial of a land delivery claim lawsuit filed by Mr. A against Mr. B and two others, and remanded the case to the Jeonju District Court. The Supreme Court en banc stated, "Recognizing statutory superficies under customary law is consistent with the entire legal order, which has the Constitution as the supreme norm."

In January 2014, Mr. A won the bid for land with a single-story building on it through an auction procedure. Previously, the land had been inherited by Mr. C from his deceased spouse and gifted to Mr. B in August 2010, while the building was jointly inherited by the heirs of Mr. and Mrs. C. With different owners of the land and building, Mr. A newly became the sole owner of the land. Mr. A filed a lawsuit claiming that not only the land but also the building should be delivered to him. He also added that he should receive rent of 4.68 million KRW for using the building since acquiring the land.

In court, the issue was whether statutory superficies can be recognized in cases like this where the landowner changed while holding a shared ownership interest in the building. Superficies is a legal right allowing the landowner to use the land when the owners of the building and land differ, and statutory superficies under customary law is a right recognized by precedent that grants superficies even when the owners of the person and land differ. The Supreme Court has recognized such statutory superficies.

The first trial followed existing precedents, accepted Mr. A’s claim, and ordered payment of 4.69 million KRW as rent and about 250,000 KRW monthly until the building is delivered, but the second trial was different. It judged that when Mr. C gifted the land to Mr. B in 2010, Mr. C was only a co-owner of the building and that the land and building were not owned by the same person. The Supreme Court en banc found the lower court’s rejection of existing precedents to be inappropriate. "Our legal system treats land and the buildings on it as separate and independent real estate, so when the owners of the land and the building are separated, there is a public interest necessity to prevent socioeconomic losses caused by demolition of the building," it stated.

This content was produced with the assistance of AI translation services.