August 2018
For a commonly owned object which is not separately managed as agreed by all joint owners, if a joint owner benefits by occupying a specific portion of the commonly owned object, the consent of the other joint owners should be obtained (Taiwan)
2018.5.31
Frank Sun
The Supreme Court rendered the 106-Tai-Shang-2029 Civil Decision of May 31, 2018 (hereinafter, the "Decision"), holding that for a commonly owned object which is not separately managed as agreed by all joint owners, if a joint owner benefits by occupying a specific portion of the commonly owned object, the consent of the other joint owners should be obtained.
According to the facts underlying this Decision, the Plaintiff asserted that the Defendants had been joint owners of the land and basement at issue. However, the Defendants occupied specific portions of the land and basement at issue without the Plaintiff's consent. Therefore, a complaint was filed to compel the demolition of relevant installations and their return to all joint owners. It was held in the original decision that a tacit separate management contract between the Plaintiff and the Defendants, i.e., all of the joint owners, on the specific portions of the land and basement at issue to allow the use by the Defendant was established. Therefore, the original decision found in favor of the Defendants. Dissatisfied, the Plaintiff appealed.
According to the Decision, for a commonly owned object which is not separately managed as agreed by all joint owners, if a joint owner benefits by occupying a specific portion of the commonly owned object, the consent of the other joint owners should be obtained. The so-called indication of intent not only includes the scenario where the action of the persons indicating the intent or other things are sufficient to indirectly infer their knowledge of an acknowledgement effect. In case of simple reticence, with the exception of transactional practices or special matters between specific individuals, only when a specific indication of intent can be determined according to a general social construct can a tacit indication of intent be concluded. If unit owners agree that a jointly used portion should be provided to specific unit owners for use, such use shall be governed by the setup purposes, typical usage manners and agreement on such use.
It was further pointed out in this Decision that when Defendant A purchased from his predecessor, the predecessor had specifically indicated in the sales contract that there shall be no warranty liability for the transferred occupation of the basement at issue, while Defendant B additionally purchased the property at No. 10 on the first floor, including the right to use part of the basement at issue. In this connection, is it likely that Defendant A, Defendant B and other unit owners had been aware from the very beginning that the basement at issue were jointly owned by all unit owners and had tacitly agreed to a separate management contract based on the status of the joint owner of the basement at issue? In addition, the Plaintiff asserted that the portion of the land at issue and basement was a car park in a statutory vacant land. Whether the existence of a tacit separate management contract may be concluded by inferring that the developer has enclosed the land and expanded space to use and occupy the basement at issue and has engaged in such use for many years is still open to questions. Therefore, the original decision was reversed and remanded.
Frank Sun
The Supreme Court rendered the 106-Tai-Shang-2029 Civil Decision of May 31, 2018 (hereinafter, the "Decision"), holding that for a commonly owned object which is not separately managed as agreed by all joint owners, if a joint owner benefits by occupying a specific portion of the commonly owned object, the consent of the other joint owners should be obtained.
According to the facts underlying this Decision, the Plaintiff asserted that the Defendants had been joint owners of the land and basement at issue. However, the Defendants occupied specific portions of the land and basement at issue without the Plaintiff's consent. Therefore, a complaint was filed to compel the demolition of relevant installations and their return to all joint owners. It was held in the original decision that a tacit separate management contract between the Plaintiff and the Defendants, i.e., all of the joint owners, on the specific portions of the land and basement at issue to allow the use by the Defendant was established. Therefore, the original decision found in favor of the Defendants. Dissatisfied, the Plaintiff appealed.
According to the Decision, for a commonly owned object which is not separately managed as agreed by all joint owners, if a joint owner benefits by occupying a specific portion of the commonly owned object, the consent of the other joint owners should be obtained. The so-called indication of intent not only includes the scenario where the action of the persons indicating the intent or other things are sufficient to indirectly infer their knowledge of an acknowledgement effect. In case of simple reticence, with the exception of transactional practices or special matters between specific individuals, only when a specific indication of intent can be determined according to a general social construct can a tacit indication of intent be concluded. If unit owners agree that a jointly used portion should be provided to specific unit owners for use, such use shall be governed by the setup purposes, typical usage manners and agreement on such use.
It was further pointed out in this Decision that when Defendant A purchased from his predecessor, the predecessor had specifically indicated in the sales contract that there shall be no warranty liability for the transferred occupation of the basement at issue, while Defendant B additionally purchased the property at No. 10 on the first floor, including the right to use part of the basement at issue. In this connection, is it likely that Defendant A, Defendant B and other unit owners had been aware from the very beginning that the basement at issue were jointly owned by all unit owners and had tacitly agreed to a separate management contract based on the status of the joint owner of the basement at issue? In addition, the Plaintiff asserted that the portion of the land at issue and basement was a car park in a statutory vacant land. Whether the existence of a tacit separate management contract may be concluded by inferring that the developer has enclosed the land and expanded space to use and occupy the basement at issue and has engaged in such use for many years is still open to questions. Therefore, the original decision was reversed and remanded.
