May 2019
If a complaint is filed to demolish a building which is not divided and whose ownership is not registered, all of the inheritors shall be identified as the defendants in order to have appropriate defendants and the current occupant shall not be identified as the sole defendant (Taiwan)
2018.12.13
Yi-Shan Cheng
The Supreme Court rendered the 107-Tai-Shang-2124 Civil Decision of December 13, 2018 (hereinafter, the "Decision"), holding that if a complaint is filed to demolish a building which is not divided and whose ownership is not registered, all of the inheritors shall be identified as the defendants in order to have appropriate defendants and the current occupant shall not be identified as the sole defendant.
In this Decision, the Appellee alleged that he was the owner of the land at issue, while the Appellant was the factual disposal right holder for the building at issue on the land and the empty cement-paved land next to it. The Appellee requested that since there was no justification for the building at issue and the empty cement-paved land to occupy the land at issue (hereinafter, the "Occupied Portions at Issue"), a decision should be rendered to compel the Appellant to demolish the Occupied Portions at Issue and return the land to the Appellee in accordance with the first part of Article 767, Paragraph 1 of the Civil Code.
According to this Decision, the appropriateness of a party is a matter that the court shall investigate ex officio. In addition, before a jointly inherited estate is divided, it is jointly owned by all inheritors and no single inheritor may dispose of the estate at will without the consent of all inheritors. Since demolition is a factual disposal act, only persons with a factual disposal right over the building may do this. The factual disposal right over a jointly owned building which has not gone through initial ownership registration (preservation registration) basically vests with all the joint owners, and it is not allowed to have some or one of the joint owners demolish the building without the consent of all the joint owners. Therefore, if a complaint is filed to demolish a building which is not divided and whose ownership is not registered, all of the inheritors shall be identified as the defendants in order to have appropriate defendants and the current occupant shall not be identified as the sole defendant.
It was further pointed out in this Decision that although the Appellant stated that his factual disposal right over the building at issue had been obtained by way of inheritance, still the inheritee had several children with the Appellant. Therefore, this calls into question if the other inheritors had relinquished their inheritance right. If the inheritance right was not relinquished, it is necessary to consider if an agreement had been reached to vest the factual disposal right with the Appellant by dividing the estate under a separate agreement. This issue is critical to the determination if the parties to this litigation were appropriate. Without explaining about the basis of its finding, the original trial court jumped to the conclusion, based on the Appellant's statement, that the factual disposal right over the building at issue had been obtained by the Appellant and rendered a decision against the Appellant. Since the original decision was rash, it was reversed and remanded.
Yi-Shan Cheng
The Supreme Court rendered the 107-Tai-Shang-2124 Civil Decision of December 13, 2018 (hereinafter, the "Decision"), holding that if a complaint is filed to demolish a building which is not divided and whose ownership is not registered, all of the inheritors shall be identified as the defendants in order to have appropriate defendants and the current occupant shall not be identified as the sole defendant.
In this Decision, the Appellee alleged that he was the owner of the land at issue, while the Appellant was the factual disposal right holder for the building at issue on the land and the empty cement-paved land next to it. The Appellee requested that since there was no justification for the building at issue and the empty cement-paved land to occupy the land at issue (hereinafter, the "Occupied Portions at Issue"), a decision should be rendered to compel the Appellant to demolish the Occupied Portions at Issue and return the land to the Appellee in accordance with the first part of Article 767, Paragraph 1 of the Civil Code.
According to this Decision, the appropriateness of a party is a matter that the court shall investigate ex officio. In addition, before a jointly inherited estate is divided, it is jointly owned by all inheritors and no single inheritor may dispose of the estate at will without the consent of all inheritors. Since demolition is a factual disposal act, only persons with a factual disposal right over the building may do this. The factual disposal right over a jointly owned building which has not gone through initial ownership registration (preservation registration) basically vests with all the joint owners, and it is not allowed to have some or one of the joint owners demolish the building without the consent of all the joint owners. Therefore, if a complaint is filed to demolish a building which is not divided and whose ownership is not registered, all of the inheritors shall be identified as the defendants in order to have appropriate defendants and the current occupant shall not be identified as the sole defendant.
It was further pointed out in this Decision that although the Appellant stated that his factual disposal right over the building at issue had been obtained by way of inheritance, still the inheritee had several children with the Appellant. Therefore, this calls into question if the other inheritors had relinquished their inheritance right. If the inheritance right was not relinquished, it is necessary to consider if an agreement had been reached to vest the factual disposal right with the Appellant by dividing the estate under a separate agreement. This issue is critical to the determination if the parties to this litigation were appropriate. Without explaining about the basis of its finding, the original trial court jumped to the conclusion, based on the Appellant's statement, that the factual disposal right over the building at issue had been obtained by the Appellant and rendered a decision against the Appellant. Since the original decision was rash, it was reversed and remanded.
