Seoul Attorney | Seoul Civil Litigation Attorney Helps the Client Recover the Building from the Defendant

The client explained that the defendant had transferred the leasehold to another person without the client's consent and had occupied the real estate without authorization, and that, although the client had attempted to negotiate with the defendant on several occasions, the problem had not been resolved.

In the end, the client decided to entrust the legal response to the Seoul civil litigation attorney and approached the attorney to file a civil lawsuit for delivery of the building and demand its return.

In this way, the client sought to establish their rights through a legal claim concerning the real estate that the defendant was unlawfully occupying.

The defendant had originally signed a contract with the client to lease the premises in order to operate a mart.

However, while operating the mart, the defendant transferred the leasehold by subleasing it to a third party without authorization, and this was done without the client's knowledge.

The defendant's conduct amounted to a breach of the effect of the lease or a breach of contract, so the client filed a lawsuit with the assistance of the Seoul civil litigation attorney.

After reviewing the client's account, the attorney advised that, rather than asserting a return of unjust enrichment while the defendant was occupying the real estate without authorization, they should first file a lawsuit demanding delivery of the building.

Because the key issues in this case were the unlawful occupation and the transfer of the leasehold, it was important to file a lawsuit for delivery of the building and set the lease matter right.

The attorney stated that the main issues in this case were unlawful occupation, subleasing, and the transfer of the leasehold.

You may wonder whether, in connection with the defendant's unlawful occupation, the client could also bring a claim for the return of unjust enrichment.

According to Supreme Court precedent, as long as the lease remains in effect, a claim against a third party for damages equivalent to rent or for the return of unjust enrichment on the ground of unlawful occupation cannot be made (Supreme Court Decision 2005Da55121, December 7, 2006, among others).

① Unlawful Occupation

In this case, the defendant was occupying real estate owned by the client without title, so it could be found that the defendant had to deliver the real estate to the client.

In the end, the unlawful occupation had to be recognized at trial.

② Subleasing and Transfer of the Leasehold

In this case, the defendant transferred or subleased the leasehold to a lessee without the client's consent, so this was a clear breach of the lease.

It was necessary to set out the defendant's breach of the lease and assert the client's rights.

The attorney explained that this case could be resolved under the legal principles of Article 629 of the Civil Act.

① Grounds for the Lawsuit for Delivery of the Building

Article 629 of the Civil Act (Restrictions on Transfer of the Leasehold and Sublease)

A lessee may not transfer the lessee's right or sublease the leased object without the lessor's consent. If the lessee violates this provision, the lessor may terminate the contract.

This is a clear legal provision establishing that the defendant could not transfer or sublease the leasehold to another person without the client's consent, so, because the defendant violated it, the client could claim delivery of the building from the defendant.

① Grounds for the Claim to Remove Interference

The client sought to exercise the right to claim removal of interference with respect to the unlawful occupation and to recover the building from the defendant.

The right to claim removal of interference means that, under Article 214 of the Civil Act, an owner may demand that a person interfering with the ownership remove the interference, and may demand that a person engaging in conduct likely to interfere with the ownership take preventive measures or provide security for damages.

In the right to claim removal of interference, "interference" means an infringement that is still ongoing, and it differs from the concept of "damage," which applies where the infringement of a legal interest occurred in the past and has already concluded.

For that reason, a claim to remove interference based on ownership cannot consist of removing the result of the interference, but must consist of removing the cause of the interference that is currently ongoing (Supreme Court Decision 2003Da5917, March 28, 2003).

The attorney advised that, to prevail in the lawsuit for delivery of the building that the client had brought, the following strategy should be used.

First, Assert the Defendant's Occupation Without Title

This requires legally proving that the defendant was occupying the client's real estate without authorization.

Evidence such as the certified copy of the real estate register, photographs of the site or testimony of witnesses, and evidence proving the period of occupation should be gathered and submitted so as to be favorable under the court's standards of judgment.

Second, Assert the Absence of the Client's (Lessor's) Consent

It is necessary to prove that the defendant transferred or subleased the leasehold without the client's consent.

If the lease contains a provision that the leasehold will not be transferred or subleased without the lessor's consent, that is favorable in the lawsuit.

In addition, evidence of the breach of contract, such as the sublease agreement and the leasehold transfer agreement, should be submitted to prove the defendant's unlawful sublease and transfer.

The attorney emphasized that the defendant was occupying the real estate without title, and submitted the lease and related documents to the court to prove this.

In addition, the attorney proved that the defendant had transferred or subleased the leasehold without the client's consent, establishing the legal basis for the client's claim for delivery of the building.

In order to legally prove that the defendant had transferred or subleased the leasehold without the client's consent, the attorney submitted the following evidence to the court.

By presenting the original lease as evidence, the attorney made it clear that the client had never consented to the defendant's unauthorized transfer or sublease.

This legally established that the defendant's conduct amounted to a breach of contract.