August 2017
A court should generally consider the objectives of superficies, the type, nature and usage status of a building or a work in order to decide if to approve or reject duration or to terminate superficies(Taiwan)
Luke Hung
The Supreme Court rendered the 105-Tai-Shang-163 Civil Decision of January 27, 2016 (hereinafter, the "Decision"), holding that a court should generally consider the objectives of superficies, the type, nature and usage status of a building or a work in order to decide if to approve or reject duration or to terminate superficies.
According to the facts underlying this Decision, the original trial court reversed the first instance decision favorable to the Appellant and rendered a decision to reject the complaint on the ground that since superficies are property rights protected under the Constitution, it is not appropriate to deprive a party of his property rights by arbitrary termination of the superficies. According to the legislative objective of Article 833-1 of the Civil Code, it was concluded that the superficies at issue do not meet the termination reasons in such article, and the Appellant's complaint to seek a declaration that the superficies at issue should be terminated and that the Appellee should remove the registration of the superficies was rejected. Dissatisfied, the Appellant filed this appeal.
According to the Decision, Article 833-1 of the Civil Code provides that in the absence of a term of superficies, if the duration has lasted over 20 years or if the purposes for establishing the superficies no longer exist, the court may, at the request of a party, set the duration or terminate the superficies by considering the purposes of the superficies, the type, nature and usage status of a building or work. Therefore, the court should generally consider the objectives of superficies, the type, nature and usage status of a building or a work in order to decide if to approve or reject duration or to terminate superficies. If the superficies whose term is not set from the very beginning has never allowed the purpose of, when the building or work established for the first time becomes decrepit and should be replaced, establishing it for the second time. Then the existence and usage status of the decrepit building or work established via superficies no longer reflect the economic value of the land and require a new usage approach in order to maximize the efficiency of the land. This satisfies the provision of Article 833-1 of the Civil Code.
It was further held in the Decision that the superficies at issue was registered in February 1959 with no definite term and no rent involved. The house at issue which was built based on the superficies by demolishing the original wooden building has become decrepit and it was found as a result of an examination that the house at issue should preferably be demolished and rebuilt. In addition, the area of the house at issue is not small, can be used for large-scale operation and therefore has good developmental and economic value. However, the existence of the superficies at issue has resulted in the separation of the usage right and ownership, which can hardly be combined. This is a fact concluded by the original trial court. Therefore, this calls into question the purposes of setting up such superficies, and the Appellant's request that the court declare the termination of the superficies at issue in accordance with Article 833-1 of the Civil Code is not entirely without basis for further exploration. Therefore, the original decision was reversed and remanded.
The Supreme Court rendered the 105-Tai-Shang-163 Civil Decision of January 27, 2016 (hereinafter, the "Decision"), holding that a court should generally consider the objectives of superficies, the type, nature and usage status of a building or a work in order to decide if to approve or reject duration or to terminate superficies.
According to the facts underlying this Decision, the original trial court reversed the first instance decision favorable to the Appellant and rendered a decision to reject the complaint on the ground that since superficies are property rights protected under the Constitution, it is not appropriate to deprive a party of his property rights by arbitrary termination of the superficies. According to the legislative objective of Article 833-1 of the Civil Code, it was concluded that the superficies at issue do not meet the termination reasons in such article, and the Appellant's complaint to seek a declaration that the superficies at issue should be terminated and that the Appellee should remove the registration of the superficies was rejected. Dissatisfied, the Appellant filed this appeal.
According to the Decision, Article 833-1 of the Civil Code provides that in the absence of a term of superficies, if the duration has lasted over 20 years or if the purposes for establishing the superficies no longer exist, the court may, at the request of a party, set the duration or terminate the superficies by considering the purposes of the superficies, the type, nature and usage status of a building or work. Therefore, the court should generally consider the objectives of superficies, the type, nature and usage status of a building or a work in order to decide if to approve or reject duration or to terminate superficies. If the superficies whose term is not set from the very beginning has never allowed the purpose of, when the building or work established for the first time becomes decrepit and should be replaced, establishing it for the second time. Then the existence and usage status of the decrepit building or work established via superficies no longer reflect the economic value of the land and require a new usage approach in order to maximize the efficiency of the land. This satisfies the provision of Article 833-1 of the Civil Code.
It was further held in the Decision that the superficies at issue was registered in February 1959 with no definite term and no rent involved. The house at issue which was built based on the superficies by demolishing the original wooden building has become decrepit and it was found as a result of an examination that the house at issue should preferably be demolished and rebuilt. In addition, the area of the house at issue is not small, can be used for large-scale operation and therefore has good developmental and economic value. However, the existence of the superficies at issue has resulted in the separation of the usage right and ownership, which can hardly be combined. This is a fact concluded by the original trial court. Therefore, this calls into question the purposes of setting up such superficies, and the Appellant's request that the court declare the termination of the superficies at issue in accordance with Article 833-1 of the Civil Code is not entirely without basis for further exploration. Therefore, the original decision was reversed and remanded.
