When a tenant, leasing from a particular unit owner, unlawfully uses the common areas of a multi-unit building, the Supreme Court decision at issue held that if a unit owner exercises rights over the common areas based on their co-ownership share in a...
When a tenant, leasing from a particular unit owner, unlawfully uses the common areas of a multi-unit building, the Supreme Court decision at issue held that if a unit owner exercises rights over the common areas based on their co-ownership share in a manner that conflicts with the interests of other unit owners, such conduct cannot be regarded as an individual preservation act. Rather, it must be considered a management act requiring a resolution of the management association. The conclusion of the decision is sound in this respect. Accordingly, if a claim to remove an obstruction to the common areas or to prohibit acts interfering with joint use, made by a unit owner on the basis of their co-ownership share, is deemed to fall within the scope of management of the common areas, then in cases where a proper management association is not organized or the requirements for a resolution cannot be satisfied, the unit owner’s claim will inevitably be restricted. However, when a unit owner, or a user authorized by such owner, occupies or uses the common areas without a valid resolution, or alters them thereby creating an unlawful state, the “interests of other co-owners” cannot be understood to include the benefit enjoyed by the very unit owner who committed the unlawful act by maintaining such a state. To construe such a situation as a management act requiring a resolution of the management association would be unreasonable. In these circumstances, there is room to recognize that another unit owner may individually seek rectification of the unlawful state without the need for a resolution of the management association. Ultimately, the interests of a unit owner that are neither legitimate nor lawful are not worthy of protection. Moreover, the objective purpose of the common areas in a multi-unit building is determined at the time sectional ownership is established, and is not affected by subsequent remodeling or changes in use. Thus, recognizing a claim for removal of interference in such cases does not alter the existing condition but rather restores the original state that was unlawfully changed without a valid resolution. Accordingly, such a claim should be regarded as a preservation act, which may be exercised individually. Nevertheless, given that the legislative purpose of the Act on Multi-unit Buildings lies in ensuring the safety of the building and adjusting the interests among unit owners, this interpretation can only be justified within those limits.