Open Decision Ledger · Customary law & property rights
Adverse possession between co-owners before and after a partition judgment
Supreme Court, Feb. 12, 2026, 2024Da229053 (judgment)
Case name: 토지인도·토지인도[점유취득시효 완성을 원인으로 소유권이전등기절차 이행을 구하는 사건]
Official text on the National Law Information Center
Question
Where one co-owner occupies all of co-owned land, is that possession adverse by its nature to the other co-owners within the limits of their shares, and does that change when the occupants believed they were acquiring separate ownership of the parts they occupied and obtained ownership transfer registrations to that effect, or when a partition judgment has made one part the sole property of another?
Holding
Possession of all co-owned land by one co-owner is, in the absence of other special circumstances, adverse by its nature to the other co-owners within the range of their shares. It is not adverse by its nature where the co-owners believed they would separately own the parts of the pre-partition land occupying the area they each held, and obtained ownership transfer registrations over shares matching the approximate area of those parts, even though the register still shows them as co-owners of a part of each land. Where the co-ownership has nonetheless been dissolved through partition proceedings and that part has become the sole property of another person, the former co-owner's continued possession is adverse unless there are special circumstances otherwise.
Summary of the holding, verbatim
공유토지는 공유자 1인이 그 전부를 점유하고 있다고 하여도 다른 특별한 사정이 없다면 그 권원의 성질상 다른 공유자의 지분비율의 범위 내에서는 타주점유라고 볼 수밖에 없지만, 공유자들이 분할 전 토지의 전체면적 중 각 점유 부분을 구분소유하게 된다고 믿고서 그 각 점유 부분의 대략적인 면적에 해당하는 만큼의 지분에 관하여 소유권이전등기를 경료받은 경우에는, 등기부상 공유자들이 각 토지의 일부 공유자로 되어 있다고 하더라도 그들의 점유가 권원의 성질상 타주점유라고 할 수는 없다.
Unofficial English translation
Even where one of the co-owners is in possession of the entirety of the co-owned land, absent special circumstances to the contrary, such possession cannot but be regarded as, by the nature of the title, possession held on account of another within the scope of the other co-owners' shareholding ratios. However, where the co-owners, believing that they would acquire separate ownership of each occupied portion out of the total area of the land prior to division, completed the transfer of ownership registration as to shares corresponding to the approximate area of each occupied portion, even though the co-owners are recorded in the register as co-owners of a portion of each parcel of land, their possession cannot be said to be, by the nature of the title, possession held on account of another.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Form of the test
Elements stated Stated in the decision
등기부상 공유자들이 각 토지의 일부 공유자로 되어 있다고 하더라도 그들의 점유가 권원의 성질상 타주점유라고 할 수는 없다
Unofficial English translation
even though the co-owners are recorded in the register as co-owners of a portion of each parcel of land, their possession cannot be said to be, by the nature of the title, possession held on account of another
Factors
- 다른 특별한 사정이 없다면
- 그 권원의 성질상 다른 공유자의 지분비율의 범위 내에서는 타주점유라고 볼 수밖에 없지만
- 공유자들이 분할 전 토지의 전체면적 중 각 점유 부분을 구분소유하게 된다고 믿고서
- 그 각 점유 부분의 대략적인 면적에 해당하는 만큼의 지분에 관하여 소유권이전등기를 경료받은 경우에는
- 공유물분할 절차 등을 통해 공유관계가 해소되어 그 점유 부분이 다른 공유자의 단독 소유가 되었다면
Unofficial English translation
• absent special circumstances to the contrary
• such possession cannot but be regarded as, by the nature of the title, possession held on account of another within the scope of the other co-owners' shareholding ratios, however
• where the co-owners, believing that they would acquire separate ownership of each occupied portion out of the total area of the land prior to division,
• completed the transfer of ownership registration as to shares corresponding to the approximate area of each occupied portion,
• if the co-ownership relationship is dissolved through a procedure such as an action for partition of the co-owned property and the occupied portion becomes the sole ownership of another co-owner,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1996. 3. 22. 선고 95다53768 판결, 대법원 2019. 7. 10. 선고 2018다245597 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 95Da53768 decided March 22, 1996; Supreme Court Decision 2018Da245597 decided July 10, 2019.
Decisions referred to
대법원 1996. 3. 22. 선고 95다53768 판결(공1996상, 1349), 대법원 2019. 7. 10. 선고 2018다245597 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
After a partition judgment has become final and the co-ownership has been dissolved, what special circumstances would leave the former co-owner's continued possession non-adverse?
The retrial judgment of the Suwon District Court, once it fixes when the defendant's possession became adverse and whether any special circumstances remain, would show how this rule works. A change to Article 197(1), Article 245(1) or Article 262 of the Civil Act, or a later decision modifying the two decisions cited, would call for this entry to be read again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon District Court, sitting on appeal, in its judgment of 11 January 2024 (2023Na53379, 53386), rejected the plaintiff's contention that the defendant's possession had turned adverse from about the time of the partition litigation. It held that an intention to possess as owner need only exist when possession begins, and that mere later knowledge that the land is not one's own does not convert possession into adverse possession, and that the defendant's position in occupying the disputed 17.3 square metres appeared unchanged around the partition litigation. It therefore kept the presumption of possessio proprio, accepted the defendant's acquisitive prescription claim completed on 22 September 2014, dismissed the plaintiff's claim for delivery and granted the defendant's counterclaim for ownership transfer registration.
Supreme Court standard: The Supreme Court held that the court below could not be accepted in that reasoning. Because the defendant was a party to the partition litigation and the judgment dividing the land containing the disputed property into the plaintiff's sole ownership had become final, there was a strong likelihood that the defendant's possession changed to adverse possession at the moment of finality. The court below had misread the law on the presumption of possessio proprio and had failed to examine what needed examining, which affected the judgment, so the judgment was reversed and the case remanded for retrial.
Distinguishing conditions
- Where a co-owner occupies only part of the co-owned land, so that the premise of this rule, the occupation of all of it by one co-owner, is absent; the decision does not address whether that possession is adverse.
- Where the co-owners did not believe they would separately own the parts corresponding to the areas they occupied, or obtained no ownership transfer registration over shares matching the approximate area of those parts, so that the exception from adverse possession does not apply.
- Where special circumstances show that the continued possession after the dissolution of co-ownership is not adverse to the new sole owner.
Record verification notes
Establish first what the defendant believed and what registrations were actually obtained over which shares, since the Court's exception turns on that belief matching the registered shares. Then trace the partition judgment to its finality date, 8 September 2008 here, and confirm that the defendant was a party to it, because the conversion of possession is tied to the moment the judgment became final. What remains unsettled is which special circumstances would leave the continued possession non-adverse.
From the official text
Points at issue
공유자 1인이 공유토지 전부를 점유하고 있는 경우, 그 권원의 성질상 다른 공유자의 지분비율의 범위 내에서는 타주점유인지 여부(원칙적 적극) / 등기부상 공유자들이 분할 전 토지의 전체면적 중 각 점유 부분을 구분소유하게 된다고 믿고 각 점유 부분의 대략적인 면적에 해당하는 만큼의 지분에 관하여 소유권이전등기를 마친 경우, 각 점유가 권원의 성질상 타주점유인지 여부(소극) / 이러한 경우라도 공유물분할 절차 등을 통해 공유관계가 해소되어 그 점유 부분이 다른 공유자의 단독 소유가 되었다면, 종전 공유자가 이를 계속 점유하더라도 그 점유가 타주점유인지 여부(원칙적 적극)
Unofficial English translation
Whether, where one of the co-owners is in possession of the entirety of the co-owned land, such possession is, by the nature of the title, possession held on account of another within the scope of the other co-owners' shareholding ratios (in principle, affirmative) / Where the co-owners as recorded in the register, believing that they would acquire separate ownership of each occupied portion out of the total area of the land prior to division, completed the transfer of ownership registration as to shares corresponding to the approximate area of each occupied portion, whether each such possession is, by the nature of the title, possession held on account of another (negative) / Even in such a case, if the co-ownership relationship is dissolved through a procedure such as an action for partition of the co-owned property and the occupied portion becomes the sole ownership of another co-owner, whether the former co-owner's continued possession thereof is possession held on account of another (in principle, affirmative)
Summary of the holding
공유토지는 공유자 1인이 그 전부를 점유하고 있다고 하여도 다른 특별한 사정이 없다면 그 권원의 성질상 다른 공유자의 지분비율의 범위 내에서는 타주점유라고 볼 수밖에 없지만, 공유자들이 분할 전 토지의 전체면적 중 각 점유 부분을 구분소유하게 된다고 믿고서 그 각 점유 부분의 대략적인 면적에 해당하는 만큼의 지분에 관하여 소유권이전등기를 경료받은 경우에는, 등기부상 공유자들이 각 토지의 일부 공유자로 되어 있다고 하더라도 그들의 점유가 권원의 성질상 타주점유라고 할 수는 없다. 그러나 이러한 경우라도 공유물분할 절차 등을 통해 공유관계가 해소되어 그 점유 부분이 다른 공유자의 단독 소유가 되었다면, 종전 공유자가 위 점유 부분을 계속 점유하고 있다고 하더라도 그 점유는 달리 특별한 사정이 없는 한 타주점유라고 봄이 타당하다.
Order
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Provisions referred to
민법 제197조 제1항, 제245조 제1항, 제262조
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