Aggregate Buildings Act | Analysis of a High Court Judgment Holding That a First-Floor Balcony Garden in an Apartment Constitutes Common Land

The parties who litigated the claim for removal of a facility under the Aggregate Buildings Act were A, a first-floor resident of the apartment, and B, a second-floor resident.

A, who lived on the first floor of an apartment in Bangbae-dong, Seoul, claimed that A could use the land laid out as a garden in front of the veranda exclusively, and after putting up a fence and laying down a deck, A used it as an independent outdoor space.

In response, B, a second-floor resident, filed a lawsuit against A seeking removal of the space and delivery of possession.

B claimed that A had exclusively possessed the garden in question, had installed various facilities to create a private garden, and was blocking other residents' access.

B also claimed that, until A remodeled the space, the garden site had been maintained by the apartment management staff, and that, because drainage facilities such as for rainwater and firefighting facilities were buried beneath the garden, A's exclusive use was improper.

A, on the other hand, countered that A had merely repaired the deck and other features that had existed in the garden since the time of the apartment's original design, and that, because the garden could be reached only through A's own apartment, it had been designed as a structure provided solely to the owners of first-floor households.

In connection with the Aggregate Buildings Act, the court of first instance ruled in B's favor and ordered A to remove the deck and fence that A had installed privately.

The District Court that rendered the first-instance judgment explained that the facilities A had installed were installed arbitrarily without lawful procedures, and that, as a result, outsiders' access to the garden was controlled, so that A came to possess and use the garden exclusively.

The court also added, as grounds for its judgment, that well over 60% of the occupant households agreed to the removal of the facilities, and that, if the facilities were removed, access to the pipes and other equipment buried in the garden for apartment management would become easier, and, through connection to the road that is a common area and to other gardens within the apartment, other sectional owners might come to use a larger space than before.

The court of second instance also found the first-instance determination correct and dismissed A's appeal.

We have analyzed, in connection with the Aggregate Buildings Act, a High Court judgment holding that a first-floor balcony garden in an apartment is common land and therefore cannot be used independently by the first-floor household.

First-floor apartment units are relatively less preferred because of issues such as noise and privacy, so they are often priced lower than units on other floors.

For this reason, such units are sometimes offered with a special option indicating that the first-floor garden site is included in the property, in order to increase demand.

If an exclusive right to use the flower bed in front of the home is precisely set out in the real estate contract, use of the first-floor garden may be recognized as legally valid.

However, if such matters are not guaranteed by the contract, no right of use can be asserted.

Accordingly, to avoid becoming involved in litigation such as the above, it is advisable to read the contract carefully, and consulting with an attorney experienced in these matters is recommended.

Daeryun Law Firm LLP operates a 🔗 Construction and Real Estate Group, through which attorneys handling real estate matters provide solutions suited to the client's situation.

If you have any questions regarding the Aggregate Buildings Act, you are welcome to request a consultation with the Construction and Real Estate Group of Daeryun Law Firm LLP at any time.