Grave Base Rights | Supreme Court Judgment Holding That Ground Rent May Be Claimed Even for Consent-Based Grave Base Rights in Accordance With the Principle of Equity

The lower court found that the grave in this case constituted consent-based grave base rights installed with the express consent of the landowner.

It then took as its premise that, under Supreme Court precedent, consent-based grave base rights are established without charge unless there was an agreement for paid use of the ground rent between the landowner and the person safeguarding and managing the grave at the time of establishment.

In this case, because there was no evidence to find that an agreement on the payment of ground rent existed at the time the grave was installed, the lower court determined that no obligation to pay ground rent arose for the defendant and dismissed all of the plaintiffs' claims.

Unlike the lower court, the Supreme Court found that recognizing ground rent in this case conforms to the principle of equity.

First, it determined that at the time the grave was installed the landowner and the deceased buried in the grave were first cousins, and a relationship of trust among relatives underlay the permission for free use.

However, the court found that as the land was transferred by gift the owner changed, that a prolonged legal dispute continued between the plaintiffs and the defendant, and that the former relationship of trust had effectively broken down.

Second, approximately 46 years had elapsed since the grave was installed, significantly exceeding the statutory period of grave existence, and this was assessed as a circumstance making it difficult to continue justifying free use.

Third, the court also considered that the economic value and potential utility of the land had changed significantly, as the appraisal results showed that the land price had risen sharply over a short period.

The court nonetheless found that the lower court's rejection of the entire claim for ground rent on the ground that the use was free, without sufficiently examining these circumstances, amounted to a misapprehension of the legal principles, and it accordingly reversed the lower judgment and remanded the case.

This judgment made clear that consent-based grave base rights are in principle without charge but are not a right that guarantees free use in perpetuity.

It is particularly significant in that, with respect to grave base rights that have continued for a long period, the court actively considered the protection of the landowner's property rights and the principle of equity and recognized the possibility of conversion to paid use in accordance with changed circumstances.

In future disputes over grave base rights, the key factor in the determination is likely to be not merely whether consent existed at the time of installation, but whether continuing to recognize free use is reasonable as of the present time.

We closely review whether the landowner consented at the time the grave was installed and whether the kinship or relationship of trust that formed the background to that consent existed.

In particular, by specifically identifying whether the reason free use was permitted stemmed from a personal relationship or was merely a customary practice, we assess whether the basis for the continued existence of free grave base rights has been maintained to the present.

We comprehensively organize the course of the transfer of land ownership, the period elapsed since the grave was installed, whether disputes have arisen, and whether the relationship of trust between the parties has broken down.

In addition, by proving economic factors such as the rise in land prices, changes in the land-use environment, and development potential through objective materials and appraisal results, we emphasize the need to recognize ground rent in accordance with the principle of equity.

We argue precisely, according to the standards set by precedent, as to when free grave base rights are converted to paid use and when the landowner's intent to claim consideration for use was objectively manifested externally.

Through this, we reasonably specify the period and scope of the claim for ground rent and effectively defend against the counterargument that the claim is limited to only part of the period.

Where prior lawsuits exist, such as those over relocation of the grave, the return of unjust enrichment, or disputes over the right of possession, we analyze the scope of the res judicata effect and the application of the principle of good faith of those judgments to clarify the legal basis on which a new claim for ground rent is permitted.

Through this, we secure the legality and independence of the claim even in repeated disputes surrounding the same grave.

In parallel with the progress of the litigation, we also review practical solutions such as negotiations on relocating the grave, methods of ending the dispute on the premise of payment of ground rent, and measures following the expiration of the period of existence under the Act on Funeral Services, etc.

We aim for a comprehensive response that considers not only the protection of the client's property rights but also the social and emotional burdens caused by a prolonged dispute.

Drawing on experience accumulated in the fields of real estate, inheritance, and civil litigation, Daeryun Law Firm LLP responds on a one-stop basis to the entire process, from the establishment of grave base rights to claims for ground rent, conversion to paid use, and disputes over the relocation of graves.

Our firm protects clients' rights in a substantive manner by focusing on the arguments and evidentiary structures that may be recognized in an actual dispute.

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