Only unit owners short of their proper land share owe restitution

1. 01Question

   Where the unit owners of an apartment building hold only part of the land and non-unit land co-owners hold the rest, does only a unit owner who lacks or is short of the land share proportionate to the area of the exclusive portion owe rent-equivalent restitution, and how far does each non-unit co-owner's claim and each deficient unit owner's obligation reach when there are several of them?

2. 02Holding

   Yes. The Court held that a non-unit land co-owner may claim, among several such co-owners, the rent-equivalent for the whole land only within the range corresponding to that person's own co-ownership share, and that several unit owners holding only a deficient share each bear the restitution in proportion to their proper share or to the part below it. On these facts, where the deceased held 265.464/2693.1 of the land and 16 of the 60 households held no land share, the plaintiff could claim that proportion of the rent-equivalent from all unit owners lacking a proper share, and those 16 households each bear it in proportion.

   Points at issue, verbatim

   집합건물의 구분소유자들이 건물의 대지 중 일부 지분만 가지고 있고 구분소유자 아닌 대지공유자가 나머지 지분을 가진 경우, 구분소유자 중 적정 대지지분을 갖지 않거나 부족하게 가진 사람만이 구분소유자 아닌 대지공유자에게 대지의 사용·수익에 따른 임료 상당의 부당이득반환의무를 지는지 여부(적극)

   Unofficial English translation

   Whether, where the unit owners of a condominium building hold only some of the shares in the building site of the building and a co-owner of the building site who is not a unit owner holds the remaining shares, only those unit owners who do not hold, or hold an insufficient, adequate share in the building site bear the obligation to return unjust enrichment equivalent to rent arising from the use and profits of the building site to the co-owner of the building site who is not a unit owner (affirmative)

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 본소에 관한 원고(반소피고) 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The portion of the judgment of the court below concerning the principal claim in which the plaintiff (defendant in the counterclaim) lost is reversed, and this part of the case is remanded to the Seoul High Court.

4. 04Form of the test

   Elements stated Stated in the decision

   구분소유자 중 자신의 전유부분 면적 비율에 상응하는 대지 공유지분(이하 ‘적정 대지지분’이라 한다)을 갖지 않거나 부족하게 가진 사람만이 구분소유자 아닌 대지공유자에 대해 대지의 사용·수익에 따른 임료 상당의 부당이득을 반환할 의무를 진다

   Unofficial English translation

   Only those unit owners who do not hold, or hold an insufficient, co-ownership share in the building site corresponding to the ratio of the floor area of their exclusive portions (hereinafter 'adequate share in the building site') bear the obligation to return to the co-owner of the building site who is not a unit owner unjust enrichment equivalent to rent arising from the use and profits of the building site

5. 05Factors

   • 집합건물의 구분소유자들이 건물의 대지 중 일부 지분만 가지고 있고 구분소유자 아닌 대지공유자가 나머지 지분을 가진 경우
   • 구분소유자 중 적정 대지지분을 갖지 않거나 부족하게 가진 사람만이 구분소유자 아닌 대지공유자에게 대지의 사용·수익에 따른 임료 상당의 부당이득반환의무를 지는지 여부(적극)
   • 구분소유자 아닌 대지공유자가 여러 명인 경우, 각자가 부당이득반환을 청구할 수 있는 범위
   • 적정 대지지분을 갖지 않거나 이에 미달하는 대지지분만을 가진 구분소유자가 여러 명인 경우, 각자가 부담하는 부당이득반환의무의 범위

   Unofficial English translation

   • Where the unit owners of a condominium building hold only some of the shares in the building site of the building and a co-owner of the building site who is not a unit owner holds the remaining shares

   • Whether only those unit owners who do not hold, or hold an insufficient, adequate share in the building site bear the obligation to return unjust enrichment equivalent to rent arising from the use and profits of the building site to the co-owner of the building site who is not a unit owner (affirmative)

   • Where there are several co-owners of the building site who are not unit owners, the scope of the unjust enrichment that each may claim

   • Where there are several unit owners who do not hold an adequate share in the building site or hold only a share falling short of it, the scope of the obligation to return unjust enrichment borne by each

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2022. 8. 25. 선고 2017다257067 전원합의체 판결

   Unofficial English translation

   Supreme Court en banc judgment 2017Da257067 decided August 25, 2022

   Decisions referred to

   대법원 2022. 8. 25. 선고 2017다257067 전원합의체 판결, 대법원 2023. 9. 14. 선고 2016다12823 판결(공2023하, 1794)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   When a unit owner's land share changes during the period covered by the claim, by which point's share is the rent-equivalent unjust enrichment divided?

   A later decision fixing how the whole-land rent-equivalent is valued and apportioned where a unit owner's land share changes over time would require this entry to be read again. So would any amendment to items (v) and (vi) of Article 2, Article 12(1), Article 20 or Article 21 of the Act on Ownership and Management of Co-owned Buildings, or to Articles 263 and 741 of the Civil Act.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.