March 2020
In the absence of a term set for superficies, if the duration has exceeded 20 years or if the purposes for setting up the superficies no longer exist, the court may, upon request, set the duration of the superficies or terminate the superficies (Taiwan)
Debby Yu
The Supreme Court rendered the 108-Tai-Shang-1214 Decision of September 12, 2019 (hereinafter, the "Decision"), holding that in the absence of a term set for superficies, if the duration has exceeded 20 years or if the purposes for setting up the superficies no longer exist, the court may, upon request, set the duration of the superficies or terminate them when requested to review the purposes of the superficies and their usage status.
According to the facts underlying this Decision, Appellant A asserted that the land at issue had belonged to his mother, who set up the superficies for construction purposes without a definite term and any rent for Appellant A's father on March 8, 1990. Later the ownership of the land at issue was bequeathed to Appellant A with the transfer registration completed on June 18 of the same year. Appellant A's father registered the transfer of the superficies at issue to Appellant B, the opposing party, on June 25, 2004. After the superficies for the land at issue were set up, the land was only used for the planation of litchi and was never used for buildings. Appellant A sought a decision that declared the termination of the superficies at issue and ordered Appellant B to cancel the registration of the superficies at issue in accordance with Article 833-1 of the Civil Code and Article 13-1 of the Enforcement Law of the Part of Rights In Rem of the Civil Code. Appellant B asserted that the land at issue and all adjacent lands had been declared a special scenic zone in 1982. Since the land owned by Appellant B was a protection area, and no building was allowed on the land owned by Appellant A. The land at issue was delineated as a hotel zone, no highway could be accessed without passing through Appellant B's land. Therefore, the lands should be combined for development in order to be profitable. Appellant B contended that both parties were willing to develop the land at issue. Although no specific development plan had been formed, the purposes of setting up the superficies at issue still existed without any termination reason.
According to the Decision, Article 833-1 of the Civil Code provides that in the absence of a term set for superficies, if the duration has exceeded 20 years or if the purposes for setting up the superficies no longer exist, the court may, upon request from a party, set the duration of the superficies or terminate them by considering the purposes of setting up the superficies and the types, nature and usage status of buildings or work objects. Therefore, the court should certainly consider the purposes of setting up the superficies, the types, nature and usage status of buildings or work objects in order to decide the duration or to terminate the superficies pursuant to the above requirements in order maximize the benefits of land utilization. The superficies at issue were registered on March 8, 1990 without a definite term or any rent, and the agreed-upon manner of use was "for construction purposes." The land at issue was located in a specific scenic area and was delineated as part of a hotel zone. Currently, there is no building on the land. Almost 30 years has elapsed since the establishment of the superficies at issue. The owner of the superficies has never used the land at issue in the agreed-upon manner. As such, there is certainly room for exploring whether the superficies at issue do not hamper the maximize the utilization benefits of the land at issue and thus do not have to be terminated. Therefore, the original trial court was rush when rendering a decision against Appellant A on the ground that there is no need to terminate the superficies at issue. The gist of Appellant's appeal, which criticizes the unfavorable portions of the original decision for violating laws and regulations and requests their reversal, is not groundless.
The Supreme Court rendered the 108-Tai-Shang-1214 Decision of September 12, 2019 (hereinafter, the "Decision"), holding that in the absence of a term set for superficies, if the duration has exceeded 20 years or if the purposes for setting up the superficies no longer exist, the court may, upon request, set the duration of the superficies or terminate them when requested to review the purposes of the superficies and their usage status.
According to the facts underlying this Decision, Appellant A asserted that the land at issue had belonged to his mother, who set up the superficies for construction purposes without a definite term and any rent for Appellant A's father on March 8, 1990. Later the ownership of the land at issue was bequeathed to Appellant A with the transfer registration completed on June 18 of the same year. Appellant A's father registered the transfer of the superficies at issue to Appellant B, the opposing party, on June 25, 2004. After the superficies for the land at issue were set up, the land was only used for the planation of litchi and was never used for buildings. Appellant A sought a decision that declared the termination of the superficies at issue and ordered Appellant B to cancel the registration of the superficies at issue in accordance with Article 833-1 of the Civil Code and Article 13-1 of the Enforcement Law of the Part of Rights In Rem of the Civil Code. Appellant B asserted that the land at issue and all adjacent lands had been declared a special scenic zone in 1982. Since the land owned by Appellant B was a protection area, and no building was allowed on the land owned by Appellant A. The land at issue was delineated as a hotel zone, no highway could be accessed without passing through Appellant B's land. Therefore, the lands should be combined for development in order to be profitable. Appellant B contended that both parties were willing to develop the land at issue. Although no specific development plan had been formed, the purposes of setting up the superficies at issue still existed without any termination reason.
According to the Decision, Article 833-1 of the Civil Code provides that in the absence of a term set for superficies, if the duration has exceeded 20 years or if the purposes for setting up the superficies no longer exist, the court may, upon request from a party, set the duration of the superficies or terminate them by considering the purposes of setting up the superficies and the types, nature and usage status of buildings or work objects. Therefore, the court should certainly consider the purposes of setting up the superficies, the types, nature and usage status of buildings or work objects in order to decide the duration or to terminate the superficies pursuant to the above requirements in order maximize the benefits of land utilization. The superficies at issue were registered on March 8, 1990 without a definite term or any rent, and the agreed-upon manner of use was "for construction purposes." The land at issue was located in a specific scenic area and was delineated as part of a hotel zone. Currently, there is no building on the land. Almost 30 years has elapsed since the establishment of the superficies at issue. The owner of the superficies has never used the land at issue in the agreed-upon manner. As such, there is certainly room for exploring whether the superficies at issue do not hamper the maximize the utilization benefits of the land at issue and thus do not have to be terminated. Therefore, the original trial court was rush when rendering a decision against Appellant A on the ground that there is no need to terminate the superficies at issue. The gist of Appellant's appeal, which criticizes the unfavorable portions of the original decision for violating laws and regulations and requests their reversal, is not groundless.
