CONTENTS
- 1. Real Estate Attorney, the Client Who Came for an Eviction Lawsuit
- - Circumstances of the Case
- - The Real Estate Attorney's Assistance
- - Result of the Real Estate Attorney's Assistance, Prevailing in the Eviction Lawsuit
- 2. Real Estate Attorney, the Legal Concept and Procedure of the Eviction Lawsuit
- - When an Eviction Lawsuit Is Necessary
- - Procedure of an Eviction Lawsuit
- 3. Real Estate Attorney, Why Legal Assistance Is Necessary
- - Response Strategy of a Real Estate Attorney
1. Real Estate Attorney, the Client Who Came for an Eviction Lawsuit
The client who came to the real estate attorney requested a consultation regarding a building eviction lawsuit.
The client's circumstances are as follows.
Circumstances of the Case
The client was the owner of a five-story commercial building and entered into a lease agreement to lease the second floor of the building to tenant B (hereinafter the defendant).
The agreement was for a term of two years, and the client agreed to receive a fixed monthly rent from the defendant each month.
The defendant paid the rent normally for one year, but after that he began to continuously fail to pay the rent.
In response, the client conveyed his intention to terminate the agreement to the defendant and continuously attempted to make contact in order to receive the unpaid rent, but the defendant did not respond.
The defendant did not pay rent for about ten months, and the amount reached as much as 80 million won.
Even after the client sent a formal content-certified mail conveying his intention to terminate the agreement, the defendant continued to be in arrears on rent and to occupy the commercial unit, so the client concluded that a legal response was necessary.
Accordingly, he came to a real estate attorney at Daeryun Law Firm and requested the delivery of the building through an eviction lawsuit.
The Real Estate Attorney's Assistance
1) Assertion of the Client's Legal Rights Due to the Defendant's Nonperformance of the Agreement
When a tenant's delinquent rent reaches an amount equivalent to three periods of rent, the landlord may terminate the agreement.
The real estate attorney secured the client's bankbook records and the records of messages sent to the defendant.
Accordingly, the attorney emphasized the fact that the defendant had intentionally failed to pay the rent while avoiding the client's contact despite the client's continuous attempts to reach him, and asserted that the client had the right to terminate the agreement under the Commercial Building Lease Protection Act.
2) Emphasis on the Right to Delivery of the Building Under the Civil Act
‘an owner may claim the return of property belonging to his ownership from a person who possesses it,’ as set forth in Article 213 of the Civil Act (Right to Claim Return of Owned Property), the attorney emphasized the fact that the client had formally conveyed his intention to terminate the agreement through a content-certified mail and had expressed his wish to be given delivery of the building.
3) Emphasis on the Client's Monetary Damage
‘the defendant failed to pay approximately 80 million won in rent over ten months, and as the arrears accumulated, the client suffered enormous monetary damage.’
In addition, the attorney submitted the client's records of managing the commercial unit and receipts for related repairs and equipment, thereby adding credibility to the fact that the client's monetary damage was severe.
Result of the Real Estate Attorney's Assistance, Prevailing in the Eviction Lawsuit
The court recognized the following points.
2) The point that the client's monetary damage resulting from the defendant's rent arrears was substantial
Accordingly, the court rendered a judgment ordering the defendant to return to the client the deposit, excluding the 80 million won in delinquent rent, and to deliver the building.
As a result, the client was able to be compensated for the rent that the defendant had failed to pay and also to be given delivery of the building.
2. Real Estate Attorney, the Legal Concept and Procedure of the Eviction Lawsuit
An eviction lawsuit is a civil lawsuit filed to restore the rights of an owner when, despite the real estate owner having demanded that the occupant vacate the property for a legitimate reason such as termination of a lease agreement or recovery of ownership, the occupant refuses to do so and continues to reside in or use the relevant real estate.
When an Eviction Lawsuit Is Necessary
Representative Cases in Which an Eviction Lawsuit Is Necessary |
|---|
When the tenant refuses to vacate even after the lease has been terminated |
When the tenant continues to occupy the property even after the contract has been terminated due to long-term rent arrears |
When the owner has won a property at a real estate auction and obtained the transfer of ownership, but the existing occupant does not vacate the premises |
When an unauthorized occupant is unlawfully possessing the real estate |
Article 213 of the Civil Act (Right to Claim Return of Owned Property) and Article 214 (Right to Claim Removal of and Prevention of Interference with Owned Property), and the owner of the real estate holds the right to claim the return of the property from a person who is occupying it without legitimate authority.
Procedure of an Eviction Lawsuit
The procedure of an eviction lawsuit proceeds in accordance with the general civil litigation procedure and is handled in stages, from the filing of the complaint through judgment and compulsory execution.
The key point is that, in order to prevent the occupant from transferring or subleasing possession to a third party first apply for a provisional injunction prohibiting the transfer of real estate possession before the eviction lawsuit.
Without this measure, a situation may arise in which the property cannot actually be delivered even after a favorable judgment is obtained.
Afterward, actual delivery of the building becomes possible only when the complaint and preparatory briefs clearly organize the rights relationship and the grounds for termination of the contract, and the response takes into account compulsory execution following the judgment.
3. Real Estate Attorney, Why Legal Assistance Is Necessary
Legal judgment is required at each stage, from whether to seek a provisional injunction prohibiting transfer of possession, through the conduct of the litigation, to compulsory execution following the judgment, and if any single stage is missed, a situation may arise in which actual delivery cannot be obtained even after a favorable judgment is won.
In order to reduce these risks, a real estate attorney provides substantive legal assistance from advance preparation through the execution stage.
Response Strategy of a Real Estate Attorney
1) Legal Preliminary Review of the Possession Relationship and the Feasibility of Eviction
A real estate attorney analyzes the case with a focus on the actual occupant, whether there is a sublease, and the possibility of a transfer of possession.
Through this, the attorney determines the need for a provisional injunction prohibiting transfer of real estate possession and, prior to the eviction lawsuit, first reviews who the current occupant is and whether there is any possibility of a sublease or transfer of possession.
2) Structuring of the Claim and Composition of the Briefs in Line with the Requirements of an Eviction Lawsuit
A real estate attorney organizes the grounds for termination of the contract, the unlawfulness of the possession, and the legal basis of the claim for delivery in line with the litigation requirements and reflects them in the complaint and preparatory briefs.
3) Procedural Management Premised on Compulsory Execution Following the Judgment
Following the judgment, a real estate attorney reviews the feasibility of execution by considering the stages up to the grant of the execution clause, the application for compulsory execution, and the court enforcement officer's procedure, and also prepares for the possibility of the opposing party's noncompliance or appeal.
If the eviction lawsuit procedure feels complicated, we recommend that you consult on a response direction suited to your current situation through a real estate attorney 🔗legal consultation reservation.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
Unauthorized reproduction, duplication, or distribution and other copyright infringements may result in legal action under applicable laws.
