CONTENTS
- 1. The Client Who Pursued Real Estate Litigation
- 2. Establishing a Response Strategy for the Real Estate Litigation
- - Reviewing a Provisional Injunction to Fix the State of Possession
- - Asserting Termination of the Contract on the Ground of Rent Delinquency
- - Organizing the Obligation to Return the Building After Termination of the Contract
- 3. The Result of the Real Estate Litigation, a “Favorable Judgment”
- 4. Real Estate Litigation, the Building Delivery Procedure
- - The Meaning of Sending Certified Mail and Terminating the Contract
- 5. If You Are Facing Real Estate Litigation
1. The Client Who Pursued Real Estate Litigation
The client who pursued the real estate litigation was the owner and lessor of a commercial building, and because the lessee continued to occupy the building while failing to pay rent for a prolonged period, the client's exercise of property rights was restricted.
The lessee initially delayed paying rent, citing temporary financial circumstances, and repeatedly conveyed that the rent would soon be settled.
Wishing to maintain the lease relationship, the client waited for the rent for a certain period, but as the period of delinquency accumulated, the situation reached the point where the maintenance fees also went unpaid.
Thereafter, the frequency of the lessee's contact sharply decreased, and the lessee maintained what was effectively a state of unauthorized possession while avoiding any discussion of the contract itself.
The client determined that real estate litigation was necessary in order to bring about the proper termination of the lease and the recovery of the building, and the client came to consider legal measures with the assistance of a real estate attorney.
During the consultation, the client conveyed the practical burden that “the situation of allowing the building to be used without even receiving rent is becoming prolonged.”
See More
2. Establishing a Response Strategy for the Real Estate Litigation
Because the key issues in real estate litigation are whether the lease has terminated and whether the lessee has a title to possession, the real estate attorney established a response strategy centered on organizing the facts and selecting the appropriate procedure.
Reviewing a Provisional Injunction to Fix the State of Possession
The client was concerned that, while the suit on the merits was pending, the lessee might transfer possession to a third party or damage the interior facilities.
The real estate attorney therefore also reviewed a provisional injunction prohibiting the transfer of possession as a means of preserving the right to claim delivery of the building.
By fixing the state of possession through the provisional injunction, the attorney designed the procedure in a direction that would secure the effectiveness of the subsequent judgment in the real estate litigation.
The court recognized the necessity of the provisional injunction in light of the possibility of a transfer of possession and the course of the dispute, and that decision was used as important reference material in the suit on the merits.
Asserting Termination of the Contract on the Ground of Rent Delinquency
The crux of the real estate litigation was whether the lease had been lawfully terminated.
On the basis of Article 10-8 of the Commercial Building Lease Protection Act, the real estate attorney emphasized that the lessee's rent delinquency had already exceeded an amount corresponding to three terms of rent.
In particular, the attorney emphasized that the period of delinquency was not short but had continued over several months, and that the likelihood of cure was low, thereby asserting the legitimacy of the termination of the contract.
With respect to the manifestation of intent to terminate the contract, the attorney focused on establishing that notice of termination had been given by comprehensively considering text message records, transmission records, and the record of delinquency.
Organizing the Obligation to Return the Building After Termination of the Contract
The point that, after the lease has terminated, the lessee's title to possession can no longer be recognized is an important factor in the determination in real estate litigation.
The real estate attorney organized the legal principle that, pursuant to the right to claim the return of owned property under Article 213 of the Civil Act, the lessor may claim delivery of the building.
To this end, the attorney systematically organized and submitted the lease agreement, the record of rent delinquency, and the circumstances of the termination of the contract, and emphasized that the lessee's possession was without title.
See More
3. The Result of the Real Estate Litigation, a “Favorable Judgment”
In the real estate litigation conducted with the assistance of the real estate attorney, the court accepted the lessor's claim and rendered a judgment ordering the lessee to deliver the building.
The court cited as grounds for its determination that the lessee's rent delinquency satisfied the requirements for termination of the contract and that the possession continued even after the lease had terminated.
In addition, the court took into account that the notice of termination of the contract had been confirmed through objective materials and that the lessee retained no separate title to possession.
The litigation costs were also determined to be borne by the lessee, and after the judgment the client responded that “a burden that had continued for a long time has been resolved.”
4. Real Estate Litigation, the Building Delivery Procedure
Among real estate litigation, a building delivery lawsuit is a representative civil procedure brought where a building is not returned even though the lease has terminated.
The legal basis is divided into the obligation to return arising upon termination of the lease and the right to claim the return of owned property under Article 213 of the Civil Act.
▶ Article 213 of the Civil Act (Right to Claim the Return of Owned Property)
In particular, in the case of a commercial building, termination of the contract becomes possible once rent delinquency exceeds a certain level, so organizing the period and amount of the delinquency is important.
▶ Article 10-8 of the Commercial Building Lease Protection Act (Rent Delinquency and Termination)
A building delivery real estate litigation generally proceeds in the following order.
▶ Flow of the Building Eviction Procedure
2. Application for a provisional injunction prohibiting the transfer of possession
3. Filing of the building delivery lawsuit
4. Conduct of the trial and pronouncement of judgment
5. Compulsory execution of the delivery of the real estate
ㆍ Preventing a change of possessor during the litigation
ㆍ Securing the effectiveness of the judgment on the merits
ㆍ The identification of the subject real estate and the proof of the fact of possession are important
Where real estate litigation is pursued while the contract term still remains, a principal issue becomes whether the manifestation of intent to terminate the contract reached the lessee.
For this reason, a process of comprehensively considering various materials, such as text messages, messenger records, and certified mail, to establish the circumstances of the termination is necessary.
The Meaning of Sending Certified Mail and Terminating the Contract
To seek the eviction of a building on the ground of unpaid monthly rent while the lease term still remains, notice of termination of the contract must first be given.
In an eviction claim case, the court first determines whether the lease has in fact terminated.
[Key Points of a Notice of Termination of the Contract]
▶ Whether the intent to terminate was conveyed to the lessee is important
▶ Materials establishing the fact of termination are needed when filing suit
Notice of termination of the contract can be given by various methods other than certified mail, such as text messages or messenger, but if the lessee denies the fact of receipt, a dispute may arise.
For this reason, the certified mail method, which allows the content and timing of transmission to be objectively recorded, is used as the most reliable means.
Even where the lessee intentionally fails to receive the certified mail, the record of transmission can be used as circumstantial evidence of the manifestation of intent to terminate.
5. If You Are Facing Real Estate Litigation
Real estate litigation related to the delivery of a building proceeds through several procedures in stages, from notice of termination of the contract by sending certified mail, to a provisional injunction prohibiting the transfer of possession, the filing of suit, the trial, and compulsory execution.
Although each stage appears to proceed independently, the determinations and the organization of materials at the preceding stages directly affect the results of the subsequent trial and execution.
In particular, at the contract termination stage, the ground and timing of termination must be clearly organized, and at the litigation stage, the circumstances of the rent delinquency, the state of possession, and the fact of termination of the contract need to be organized.
In addition, even after the judgment, if voluntary delivery is not made, a response that takes the compulsory execution procedure into account is necessary.
This firm has many real estate specialist attorneys registered with the Korean Bar Association, and it assists clients with a consistent response, conducting the review of building delivery and real estate contracts in general alongside litigation.
Drawing on data accumulated through experience in a wide range of real estate litigation, the firm establishes strategies suited to the circumstances of each case.
If you need legal assistance in a situation similar to the case above, we invite you to prepare a response strategy through a 🔗legal consultation reservation.
Related News
Watch related video content
for this case study.
About the famous lawsuit! It's hard for landlords too...what if the contract is over but the tenant doesn't move out?
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.
