2016.12.01

2015 (Ju) 477

Minshu Vol. 70, No. 8

Judgment concerning a case disputing whether or not a statutory superficies was established where provisional seizure was executed on a building constructed on a certain plot of land, and subsequently, the provisional seizure was changed to formal seizure, at which time the said land and the said building were owned by the same person, but the land was assigned to a third party. As a result, the land and the building were owned by different persons at the time the seizure was executed in a compulsory auction procedure.

Case of damage compensation and claim to define border

Judgment of the First Petty Bench, partially dismissed with prejudice on the merits, partially quashed and remanded

Fukuoka High Court, Judgment of November 21, 2014

Where provisional seizure is executed on a building constructed on a certain plot of land, and subsequently the provisional seizure is changed to formal seizure and the building is sold to a buyer, with its ownership acquired by the buyer through a compulsory auction procedure; even if the land and the building are owned by the same owner at the time of the provisional seizure, if the land is subsequently assigned to a third party, and, as a result of the assignment, the land and the building are not owned by the same owner at the time of the said compulsory auction procedure, a statutory superficies is said to be established.

Article 81 of the Civil Execution Act



Civil Execution Act



Article 81 In cases where land and any building built on it are under the ownership

of an obligor, if such land or building has been seized and the owner of either the

land or building has changed to a person other than said obligor through a sale

thereof, a superficies shall be deemed to have been established for such building.

In this case, the rent shall be specified by the court, upon request by a party

concerned.

1. The part in the judgment of the prior instance that ordered the appellant to vacate the land and pay monies calculated at a rate of 5,000 yen per month accrued since July 29, 2009 is quashed.

2. This case is remanded regarding the said part in paragraph 1 above to the Fukuoka High Court.

3. The remaining part of the appellant’s appeal is dismissed.

4. The costs for appeal related to the matters stated in paragraph 3 above should be borne by the appellant.

Regarding the reason for the petition for acceptance of a final appeal filed by KAWAHARA Kazumasa, the counsel for the appellant (excluding the part excluded):



1 The factual situation and other matters found by the judgment of the prior court were as follows:

(1) As of May 23, 2002, A owned the land indicated in 1 (2) of the list of articles attached to the judgment of the prior instance (hereinafter referred to as the “838-6 Land”), the land indicated in 2 (1) of the same list (hereinafter referred to as the “838-8 Land”) and the building indicated in 2 (2) of the same list (hereinafter referred to as the “Building.”)



(2) Provisional seizure was executed on the Building and the 838-8 Land on May 23, 2002 (hereinafter referred to as “Provisional Seizure”).



(3) A gifted the 838-6 Land to the appellee on March 26, 2007.



(4) Seizure according to a decision to commence the procedure for a compulsory auction was executed on the Building and the 838-8 Land on February 20, 2008 (hereinafter referred to as the "Compulsory Auction Procedure"). This Compulsory Auction Procedure was executed by changing the Provisional Seizure to a formal execution of seizure.

The appellant bought and acquired ownership of the Building and the 838-8 Land through a sale in the Compulsory Auction Procedure.



(5) Since July 29, 2009, the appellant has occupied the Building as well as the 838-8 Land and the 838-6 Land.



2. Under this case, the appellee, who was the owner of the 838-6 Land, demanded the appellant, who occupied the same land, to vacate a part of said land (the part indicated in Paragraph 2 (3) of the main text of the judgment of the prior instance) and to pay compensation equivalent to rent accrued from July 29, 2009 when the appellant commenced the occupation to the date when such vacation is completed, among other claims. It is argued whether a statutory superficies was established on the Building at the time the Provisional Seizure was executed by the fact that the Building and the 838-6 Land on which a part of the Building was built were owned by the same owner.



3. The judgment of the prior instance denied the establishment of a statutory superficies on the Building, admitted the appellee’s claim for land vacation, and admitted that a part of the claim for compensation equivalent to accrued rent should be paid, as follows:

Where provisional seizure is executed on a building built on a certain plot of land, and subsequently the provisional seizure is changed to formal seizure and the building is sold to a buyer and its ownership is acquired by the buyer by a compulsory auction procedure, even if the land and the building on the said land are owned by the same owner at the time of the provisional seizure, if the land is subsequently assigned to a third party, and as a result of the assignment, the land and the building are not owned by the same owner at the time of the said compulsory auction procedure, it cannot be construed that a statutory superficies has been established. This is because the right to use land may be granted for the building built on the land at the time the land is assigned and that such an establishment violates the express provision of Article 81 of the Civil Execution Act that recognizes establishment of a statutory superficies in the case where land and any building built on it are under the ownership of an obligor, if such land or building has been seized and the owner of either the land or the building has changed to a person other than said obligor through the sale thereof.



4. However, the judgment of the prior instance described above cannot be accepted for the following reasons:

(1) Where provisional seizure is executed on a building built on a certain plot of land, and subsequently the provisional seizure is changed to formal seizure and the building is sold to a buyer, with its ownership acquired by the buyer by a compulsory auction procedure, if the land and the building on the said land are owned by the same owner at the time of the provisional seizure, even if the land is subsequently assigned to a third party, and as a result of the assignment, the land and the building are not owned by the same owner at the time of the said compulsory auction procedure, it should be recognized that a statutory superficies has been established. The reasons for our conclusion are as follows:

The purpose of the statutory superficies stipulated in Article 81 of the Civil Execution Act is to prevent social and economic loss for the owner of a building caused by the necessity to remove the said building by deeming that a superficies is established for the owner of the building in the case where the land and the building built on it is under the ownership of one owner, and thus it is impossible by law to set the right to use the land, and subsequently the ownership of the land or the building changes due to a compulsory auction procedure. And if the land and a building built on that land is owned by the same person at the time of the provisional seizure of the building, the right to use said land cannot be granted at the time of such provisional seizure; and when the land is subsequently assigned to a third party, the right to use said land may not necessarily be established for the building that was built on it. Therefore, in such a case, construing that a statutory superficies was established on the building built on the land acquired by the buyer in the compulsory auction procedure conducted as a result of the formal seizure changed from the said provisional seizure, is consistent with the purpose of Article 81 of the Civil Execution Act to prevent social and economic loss caused by removal of a building built on land. Moreover, because the obligee provisionally seized the building built on the land on the assumption that the building would continue to exist, it is inappropriate to consider that a statutory superficies has not been established on the building built on the land, which resulted in unexpected damage to the obligee.



(2) When examining the disputed case, according to the factual situation stated above, Compulsory Auction Procedures were conducted as a result of the execution of formal seizure changed from the provisional seizure, and both the Building and the 838-6 Land were under the ownership of A at the time when the provisional seizure was executed. Therefore, it should be recognized that a statutory superficies was established on the Building based on the fact that the appellant acquired ownership of the Building by the Compulsory Auction Procedure.



5. The judgment of the prior instance that was different from those described above was violation of the law that obviously affected the judgment. The arguments have reasons as claiming this intent; therefore, the part in the judgment of the prior instance that admitted the claim of the appellee against the appellant to vacate the land and admitted a part of the claim for compensation equivalent to accrued rent should inevitably be quashed. This case is remanded to the second court for the said part to be further examined as to whether or not the established statutory superficies has subsequently vanished.

The final appeal regarding the remaining claim is dismissed because the reason for the petition for acceptance of the final appeal was eliminated in the decision of accepting the final appeal.

Accordingly, the judgment is unanimously rendered as described in the main text.

Justice SAKURAI Ryuko

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki