2017.12.21

2017 (Ju) 491

Minshu Vol. 71, No. 10

Judgment concerning Article 24, paragraph (1) of the Kyoto City Ordinance of City Housing (Kyoto City Ordinance No. 1, 1997), which prescribes the succession of the right to use when a resident of improvement housing has died, Article 29, paragraph (1) of the Residential Areas Improvement Act, and Article 48 of the Act on Public Housing

Case of a principal action to seek a declaratory judgment of residency etc. with a counterclaim to seek the vacation of a house etc.

Judgment of the First Petty Bench, dismissed by the Supreme Court

Osaka High Court, Judgment of November 17, 2016

It cannot be said that Article 24, paragraph (1) of the Kyoto City Ordinance of City Housing (Kyoto City Ordinance No. 1, 1997), which prescribes to the effect that, when a resident of improvement housing has died, only a person who lived together with the said resident at the time of his/her death upon the mayor’s approval may continue to reside in the said improvement housing upon the mayor’s approval, is illegal and invalid in that it contravenes Article 29, paragraph (1) of the Residential Areas Improvement Act and Article 48 of the Act on Public Housing.

Article 29, paragraph (1) of the Residential Areas Improvement Act, Article 48 of the Act on Public Housing, Article 896 of the Civil Code, and Article 24, paragraph (1) of the Kyoto City Ordinance of City Housing (Kyoto City Ordinance No. 1, 1997)



Residential Areas Improvement Act (Act No. 84 of May 17, 1960)

(Management and disposal of improvement housing with financial help from the national government)

Article 29 With regard to the management and disposal of improvement housing constructed with financial help from the national government pursuant to the provision of Article 27, paragraph (2), the provisions of Article 15, from Article 18 to Article 24, Article 25, paragraph (1), from Article 27, paragraph (1) to paragraph (4), Article 32, paragraphs (1) and (2), Article 33, Article 34, Article 44, Article 46, and Article 48 of the Act on Public Housing shall apply mutatis mutandis, while deeming improvement housing as public housing provided in the said Act, in addition to the provision of paragraph (3) of this Article; provided, however, that the provisions from Article 22 to Article 24 and Article 25, paragraph (1) of the said Act shall apply only when a person who shall be permitted to move into improvement housing pursuant to the provision of Article 18 does not move into or cease to reside in it.

Kyoto City Ordinance of City Housing (Kyoto City Ordinance No. 1, 1997)

(Succession of residence)

Article 24 When a resident of city housing has died or moved out of the said city housing, a person who lived together with the said resident at the time of his/her death or moving out (limited to a person who was permitted to live together at the time of the approval of moving in or who lived together upon the approval pursuant to the provision of the preceding Article [hereinafter referred to as the “Co-resident”]) may continue to reside in the said city housing upon the mayor’s approval, as prescribed separately.

Civil Code

(General Effect of Inheritance)

Article 896 From the time of commencement of inheritance, an heir shall succeed blanket rights and duties attached to the property of the decedent; provided that this shall not apply to rights or duties of the decedent that are purely personal.

Act on Public Housing

Article 48 A business actor shall specify necessary items required to manage public housing and common facilities in an ordinance, in addition to those specified in this Act.

The final appeal is dismissed.

The cost of the final appeal shall be borne by the appellant.

The third reason for the petition for acceptance of the final appeal argued by the counsels for the final appeal, KAWATA Hajime and NAKAMICHI Shigeru:

1. In the principal action of this case, the appellant asserts that she succeeded to a right to use (hereinafter referred to as the “right to use”), from her mother, A, of the housing stated in section 1 of the list of articles attached to the judgment of the court of the first instance (hereinafter referred to as the “Housing”), which is improvement housing under Article 2, paragraph (6) of the Residential Areas Improvement Act (hereinafter referred to as the “Act”) that the appellee (Kyoto City) possesses, and seeks the confirmation of the right to use of the Housing, the amount of its rent, etc. against the appellee. In the counterclaim of this case, the appellee seeks the vacation of the Housing, the payment of damages equivalent to the rent, etc. based on its ownership against the appellant who occupies the Housing.

2. The provisions of the laws and regulations relating to improvement housing are as follows:

(1) (a) The purpose of the Act is to improve the environment of densely housed areas with poor housing conditions and to promote the collective construction of housing enough to maintain wholesome and cultured living, with the aim of contributing to public welfare (Article 1).

(b) Executers of the project for improving housing areas are municipal governments and prefectural governments (Article 3 of the Act). In the said project, housing in poor condition in improvement areas shall be removed (Article 10 of the Act). In order to do so, it is provided that the said housing and rights related to it other than ownership may be condemned when necessary and that the provisions of the Compulsory Purchase of Land Act shall apply to such condemnation (Article 11, paragraph (1) and Article 16, paragraph (1) of the Act).

(c) It is provided that, on the day when improvement areas are designated by the Minister of Land, Infrastructure, Transport and Tourism, the executers shall construct improvement housing in a number that is equivalent to that of households of persons who reside in the said areas and who are recognized as suffering from lack of housing by losing the housing in which they resided with the execution of the project for improving housing areas, within the said areas in principle (Article 17, paragraphs (1) and (3) of the Act). Furthermore, it is provided that, with regard to persons who are listed in each item of Article 18 of the Act, such as those who continued to reside in the said areas after the aforementioned designated date and lost their housing with the execution of the project for improving housing areas, the executers shall permit them to move into improvement housing if they wish to do so and are recognized to suffer from lack of housing (the said Article).

(d) With regard to the management of improvement housing constructed with financial help from the national government, the provisions from Article 27, paragraph (1) to paragraph (4) relating to the management of public housing shall apply mutatis mutandis, while deeming improvement housing as public housing provided in the Act on Public Housing. On the other hand, the provision of paragraph (6) of the said Article (newly provided by Act No. 55 of 1996), which prescribes to the effect that a person who lived together with a resident of public housing is permitted to continue to reside in the said public housing upon a business actor’s approval when the said resident dies, does not apply mutatis mutandis (Article 29, paragraph (1) of the Act).

(e) It is provided that a resident of improvement housing constructed with financial help from the national government shall endeavor to vacate the said improvement housing when he/she continues to reside in the said improvement housing more than three years and has income that exceeds standards specified in a cabinet order (Article 29, paragraph (3) of the Act, Article 21-2 of the Act on Public Housing prior to amendment by the Act No. 55 of 1996 [hereinafter referred to as the “Former Public Housing Act”]).

(2) The executers should specify necessary items required to manage improvement housing constructed with financial help from the national government (Article 29, paragraph (1) of the Act, Article 48 of the Act on Public Housing). The appellee established the Kyoto City Ordinance of City Housing (Kyoto City Ordinance No. 1, 1997; hereinafter referred to as the “Ordinance”) with regard to management etc. of city housing including improvement housing and public housing. Article 24, paragraph (1) of the Ordinance prescribes to the effect that, when a resident of improvement housing has died, a person who lived together with the said resident at the time of his/her death and who was permitted to live together at the time of the approval of moving in or who lived together upon the approval for co-residency (hereinafter collectively referred to as the “Co-resident at the Time of Death”) may continue to reside in the said improvement housing upon the mayor’s approval.

3. The outline of facts lawfully determined by the court of prior instance is as follows:

(1) In January 2008, the appellee leased and delivered the Housing constructed with financial help from the national government to A, a person who should be permitted to move into improvement housing as provided in Article 18 of the Act.

(2) The appellant began to live together with A in the Housing in order to give care to A from around May 2010, but she did not apply for the mayor’s approval of co-residency in accordance with the Ordinance.

(3) A died in September 2013.

(4) In July 2015, an agreement concerning the division of estate was reached among A’s heirs, including the appellant, to the effect that she obtained the right to use of the Housing.

4. The court of prior instance decided as follows in summary and denied the succession of the right to use of the Housing by the appellant.

It is construed that an heir of a resident of public housing does not necessarily succeed to the right to use of the public housing when the resident has died (Supreme Court Judgment 1990 (O) 27, the Judgment of the First Petty Bench on October 18, 1990, Minshu Vol. 44, No. 7, p. 1,021). In light of the provisions and purpose of the Act, just as in the case of public housing, there is no room for construing that an heir of a resident of improvement housing constructed with financial help from the national government always succeeds to the right to use of the improvement housing when the resident has died. Therefore, it cannot be said that Article 24, paragraph (1) of the Ordinance contravenes the purpose of the provision of the Act.

5. The appellant argues that the aforementioned decision of the court of prior instance is illegal in that it erred in the interpretation of the provision of the Act because it construed the case in which a resident of improvement housing constructed with financial help from the national government died in the same way as that of public housing leased to low-income earners who suffer from lack of housing. She also argues that Article 24, paragraph (1) of the Ordinance that restricts the succession of the said right to use by heirs is illegal and invalid in that it contravenes Article 29, paragraph (1) of the Act.

6. (1) Taking the provisions and purpose of the Act described in the preceding section 2-(1) into consideration, it can be said that improvement housing is constructed for residents living in improvement areas who suffer from lack of housing by losing the housing that they resided in with the execution of the project for improving housing areas. In addition, the Act does not apply mutatis mutandis to Article 27, paragraph (6) of the Act on Public Housing prescribing the succession of the right to use when a resident of public housing has died. Therefore, it should be said that the succession of the right to use in the case of the death of a resident of improvement housing in accordance with Article 18 of the Act cannot be construed in just the same way as the case of public housing that is generally leased to low-income earners who suffer from lack of housing.

(2) Additionally, Article 18 of the Act restricts persons who shall be permitted to move into improvement housing to those who wish to move into improvement housing and are recognized to suffer from lack of housing. It does not permit all of those who lost their housing with the execution of the project for improving housing areas to move into improvement housing without any condition. Furthermore, it is provided that a resident of improvement housing constructed with financial help from the national government shall endeavor to vacate the said improvement housing when he/she continues to reside in the said improvement housing more than three years and has income that exceeds standards specified in a cabinet order (Article 29, paragraph (3) of the Act, Article 21-2, paragraph (1) of the Former Public Housing Act). In addition to the above, it is expected that the executers compensate a resident living in improvement areas for his/her ownership and other rights relating to his/her former housing with money (refer to Article 11, paragraph (1) and Article 16, paragraph (1) of the Act). Therefore, it can be said that the executers should be obliged to permit persons who lost their housing with the execution of the project for improving housing areas etc. to move into improvement housing in order to steadily provide the aforementioned persons etc. with housing, not as a compensation for the aforementioned rights.

According to the background described above, it cannot be construed that the provisions of the Civil Code regarding succession shall always apply to the succession of the right to use in the case of the death of a resident of improvement housing constructed with financial help from the national government. Furthermore, it can be construed that the executers may establish ordinances regarding the succession of the right to use in the aforementioned case as necessary items required for the management of improvement housing in accordance with Article 29, paragraph (1) of the Act and Article 48 of the Act on Public Housing, unless they contravene the provisions and purpose of the Act.

(3) Article 24, paragraph (1) of the Ordinance prescribes that, when a resident of improvement housing has died, only the co-resident with the deceased at the time of his/her death may continue to reside in the said improvement housing upon the mayor’s approval. It can be construed that the purpose of the aforementioned provision is, as mentioned above, to restrict the succession of the right to use at the time of the death of a resident of improvement housing to the co-resident with the deceased at the time of his/her death based on the purpose of improvement housing that is to steadily provide housing to persons who lost their housing with the execution of the project for improving housing areas. Therefore, since Article 24, paragraph (1) of the Ordinance is not recognized as unreasonable in light of the provisions and purpose of the Act, it cannot be said that the said Article is illegal and invalid in that it contravenes Article 29, paragraph (1) of the Act and Article 48 of the Act on Public Housing.

According to the background described above, the decision by the court of prior instance, which denied the succession of the right to use of the Housing by the appellant, is acceptable. The appellant’s argument is not acceptable.

The final appeal relating to the remaining claims shall be dismissed, because the corresponding reasons for the petition for acceptance of the final appeal were excluded in the decision to accept the final appeal.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice OTANI Naoto

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi