A clan member is occupying part of the clan land. Can we get it back?

Hello. This is an attorney experienced in inheritance cases at Daeryun Law LLC.

If a clan member is solely occupying land owned by the clan, then in principle the clan can claim its return against that clan member.

This is because, legally, clan property takes the form of collective ownership (chongyu, 總有), in which all clan members own it as a collective body.

Because this is not the private property of a particular individual, occupying and using it exclusively without a legitimate resolution of the clan's general meeting or permission to use it is an act without authority under the Civil Act, and legal problems arise.

First, if the registered title is held in the name of the clan, that land is presumed to be the collective property of the clan.

In this case, the clan can bring, against the occupant, a claim for removal of interference based on ownership, in the form of a claim for delivery of the land and a lawsuit for a provisional injunction prohibiting the transfer of possession.

In particular, if the land category is dry field or paddy, or a commercial building, and rental income or crop income has arisen, this income must be attributed to the benefit of the entire clan, so the clan can demand a settlement of the profits through a claim for the return of unjust enrichment.

However, where a person has occupied the clan land for a long time, there are cases in which the occupant asserts acquisitive prescription.

Therefore, matters such as when the possession began, whether there was the clan's implied consent, and whether there was a resolution of the clan's general meeting must be comprehensively reviewed.

An attorney experienced in inheritance cases can comprehensively analyze the clan's bylaws, whether there was a resolution of the general meeting, the registration relationships, and the circumstances of the possession, thereby clearly organizing the legal status of the clan land and systematically reviewing the possibility of a claim for return and a settlement of profits.

In addition, the attorney checks in advance whether the occupant will assert acquisitive prescription and prepares a response strategy, thereby assisting in resolving the clan land dispute in a more stable manner.