2020.09.18

2019 (Ju) 310

Minshu Vol. 74, No. 6

Judgment concerning the requirements for the interruption of extinctive prescription to become effective, when an obligee who holds a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act made a demand for liquidating distribution in real property auction procedures, by considering the claim to demand liquidating distribution as being equivalent to attachment (Article 147, item (ii) of the Civil Code prior to the amendment by Act No. 44 of 2017)

Case seeking counterclaim concerning management fees, etc.

Judgment of the Second Petty Bench, partially quashed and remanded, partially dismissed without prejudice

Tokyo High Court, Judgment of November 8, 2018

When an obligee who holds a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act made a demand for liquidating distribution in real property auction procedures, in order for the interruption of extinctive prescription to become effective by considering the claim to demand liquidating distribution in the aforementioned demand for liquidating distribution as being equivalent to attachment (Article 147, item (ii) of the Civil Code prior to the amendment by Act No. 44 of 2017), it suffices that the fact that the obligee holds the aforementioned statutory lien is proved with the documents set forth in the items of Article 181, paragraph (1) of the Civil Execution Act during the aforementioned procedures and it is not necessary that liquidating distribution of the proceeds of the sale or delivery of payment money has already been implemented without an opposition to liquidating distribution having been filed by the obligor with regard to the aforementioned claim to demand liquidating distribution.

Article 147, item (ii) of the Civil Code (prior to the amendment by Act No. 44 of 2017), Article 148, paragraph (1), item (ii) and Article 306, item (i) of the Civil Code, Article 51, paragraph (1) and Article 181, paragraph (1) of the Civil Execution Act, Article 7, paragraph (1), Article 7, paragraph (2), and Article 66 of the Act on Building Unit Ownership, etc.



Civil Code (prior to the amendment by Act No. 44 of 2017)

(Ground of Interruption of Prescription)

Article 147, item (ii)

The prescription shall be nullified upon issuance of:

(ii) any attachment, provisional seizure, or provisional disposition



Civil Code

(Postponement of Expiry of Prescription Period and Renewal of Prescription Period on the Ground of Compulsory Execution)

Article 148, paragraph (1), item (ii)

(1) If any of the following grounds exists, the prescription period does not expire until those grounds cease to exist (or until six months after those grounds cease to exist, if they cease to exist due to the withdrawal of a petition or the rescission of a petition for failure to comply with the provisions of the law):

(ii) enforcement of a security right

(General Statutory Lien)

Article 306, item (i)

A person that has a claim arising from the causes set forth below has a statutory lien over the entire assets of the obligor:

(i) expenses for the common benefit



Civil Execution Act

(Demand for Liquidating Distribution)

Article 51, paragraph (1)

(1) An obligee having an authenticated copy of a title of obligation based on which compulsory execution may be implemented pursuant to the provisions of Article 25 (hereinafter referred to as an "enforceable authenticated copy of a title of obligation"), an obligee effecting a provisional seizure who has been registered after the registration of the seizure pertaining to a commencement order for a compulsory auction, and an obligee who has proved that he/she has a general statutory lien based on any of the documents listed in the items of Article 181 (1) may make a demand for liquidating distribution.

(Commencement of Exercise of a Real Property Security Interest)

Article 181, paragraph (1)

(1) Exercise of a real property security interest shall be commenced only when any of the following documents has been submitted:

(i) A transcript of a final and binding judgment, an adjudication under Article 15 of the Domestic Affairs Adjustment Act (Act No. 152 of 1947), or a document that has the same effect as such judgment or adjudication, proving the existence of the security interest

(ii) A transcript of a notarial deed prepared by a notary, proving the existence of the security interest

(iii) A certificate of the registered matters concerning registration (excluding provisional registration) of the security interest

(iv) In the case of a general statutory lien, a document proving its existence



Act on Building Unit Ownership, etc.

(Statutory Lien)

Article 7, paragraph (1)

(1) With regard to any claim that a unit owner holds against another unit owner in relation to common elements, the grounds of the building, or ancillary facilities of the building that are other than common elements, and with regard to any claim that a unit owner holds against another unit owner based on the bylaws or meeting resolutions, the first unit owner holds a statutory lien on the obligor's unit ownership (including the rights related to the common elements and the right to use the grounds) and on the movables with which he/she has furnished the building. The same shall apply to any claims held against a unit owner by the manager or by the incorporated management association in relation to the performance of their duties or business activities.

Article 7, paragraph (2)

(2) The statutory lien referred to in the preceding paragraph shall be deemed to be a statutory lien on the expenses for common benefits, with regard to its order of priority and the effect thereof.

(Mutatis Mutandis Application of Provisions Concerning Unit Ownership in a Building)

Article 66

The provisions of Article 7, Article 8, Articles 17 through 19, Article 25, Article 26, Article 28, Article 29, Article 30, paragraph (1) and paragraphs (3) through (5), Article 31, paragraph (1), and Articles 33 through Article 56-7 shall apply mutatis mutandis to the case referred to in the preceding Article. In this case, the terms "unit owner(s)" and "incorporated management association" in these provisions (excluding Article 55, paragraph (1), item (i)) shall be deemed to be replaced with "owners of the buildings in a housing complex as defined in Article 65" and "incorporated housing complex management association" respectively; the phrases "common elements, grounds of the building, or ancillary facilities of the building that are other than common elements" and "unit ownership" in Article 7, paragraph (1) shall be deemed to be replaced with "the relevant land or the ancillary facilities (hereinafter referred to as the 'land, etc.') in the case referred to in Article 65" and "rights to the land, etc., building, or unit ownership" respectively; the phrases "common element(s)" in Article 17, Article 18, paragraphs (1) and (4) and Article 19, "the common elements, and the grounds and ancillary facilities of the relevant building in the case prescribed in Article 21" in Article 26, paragraph (1), and "the building, its grounds and the ancillary facilities thereof" in Article 29, paragraph (1) shall be deemed to be replaced with "the land, etc., as well as the land and ancillary facilities set forth in Article 68, paragraph (1), item (i) and the common elements of the building set forth in Article 68, paragraph (1), item (ii) that are specified for management pursuant to the bylaws under the provisions of Article 68"; the term "exclusive element" in Article 17, paragraph (2), Article 35, paragraphs (2) and (3), Article 40 and Article 44, paragraph (1) shall be deemed to be replaced with "building or exclusive element"; the phrase "specified in Article 14" in Article 29, paragraph (1), Article 38, Article 53, paragraph (1) and Article 56 shall be deemed to be replaced with "of the share in the land, etc. (including the rights related thereto)"; the phrase "building or its grounds or ancillary facilities" in Article 30, paragraph (1) and Article 46, paragraph (2) shall be deemed to be replaced with "land, etc. or the land, etc. or ancillary facilities set forth in the items of Article 68, paragraph (1)"; the phrase "the exclusive elements or common elements or the grounds or ancillary facilities of the building (including the rights related to the grounds or ancillary facilities of the building)" in Article 30, paragraph (3) shall be deemed to be replaced with "the building or exclusive elements, or land, etc. (including the rights relating to land, etc.), or the land or ancillary facilities set forth in Article 68, paragraph (1), item (i) (including the rights related thereto) or the common elements of the building set forth in Article 68, paragraph (1), item (ii), that are specified for management pursuant to the bylaws under the provisions of Article 68"; the phrase "within the building" in Article 33, paragraph (3), Article 35, paragraph (4) and Article 44, paragraph (2) shall be deemed to be replaced with "within the housing complex"; the phrase "Article 61, paragraph (5), Article 62, paragraph (1), Article 68, paragraph (1) or Article 69, paragraph (7)" in Article 35, paragraph (5) shall be deemed to be replaced with "Article 69, paragraph (1), or Article 70, paragraph (1)"; the term "possessor" in Article 46, paragraph (2) shall be deemed to be replaced with "the person who possesses a building or an exclusive element but who is not the owner of a building in the housing complex as defined in Article 65"; the term "Article 3" in Article 47, paragraph (1) shall be deemed to be replaced with "Article 65"; the phrase "building (for an incorporated management association consisting of unit owners who jointly own a partial common element, such common element)" in Article 55, paragraph (1), item (i) shall be deemed to be replaced with "land, etc. (including the rights related thereto)"; and the phrase "there have ceased to be exclusive elements in the building" in Article 55, paragraph (1), item (ii) shall be deemed to be replaced with "the land, etc. (including the rights related thereto) has ceased to be jointly held by the owners of the buildings in the housing complex as defined in Article 65."

1. Of the judgment in prior instance, the part concerning the claim for the payment of the money stated in the columns of "Management fees," "Repair reserve fees" and "Exclusive warehouse maintenance fees" from No. 24 to No. 94 of the Description of Delinquent Management Fees, etc. of Attachment 2 of the judgment in first instance and delay damages accrued thereon is quashed.

2. With regard to the part referred to in the preceding paragraph, this case is remanded to the Tokyo High Court.

3. The appellant's final appeal concerning the other claims is dismissed.

4. The cost for final appeal in relation to the preceding paragraph is to be borne by the appellant.

Concerning Reason 2-2 for a petition for acceptance of final appeal stated by the counsel for final appeal, KIKUCHI Fumiyasu

1. This is a case in which the appellant of final appeal, which is an incorporated housing complex management association of a condominium in Chiba City (the "Condominium"), seeks against the appellee of final appeal, who has obtained the exclusive element of the Condominium stated in the List of Articles of Attachment 1 of the judgment in first instance (the "Building Element") through a secured real property auction, the payment of management fees, repair reserve fees, and exclusive warehouse maintenance fees, which a person who was a co-owner of the Building Element before the aforementioned auction (the "Successee") had become delinquent in paying, and delay damages accrued thereon by alleging that the obligation to pay those delinquent fees and delay damages accrued thereon was transferred to the appellee based on Article 8 of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act.

The appellee argues that claims pertaining to the aforementioned management fees, etc. for which five years elapsed from the due date for payment have been extinguished by prescription based on Article 169 of the Civil Code prior to the amendment by Act No. 44 of 2017, while the appellant insists that the Successee had approved the obligation with regard to a part of the aforementioned claims, and that through the subsequent procedures for compulsory auction regarding the Successee's co-ownership interest for the Building Element (the "Compulsory Auction"), the appellant came to hold a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act with regard to the claim pertaining to the money stated in the columns of "Management fees," "Repair reserve fees" and "Exclusive warehouse maintenance fees" from No. 24 to No. 94 of the Description of Delinquent Management Fees, etc. in Attachment 2 of the judgment in first instance (the "Claim to Demand Liquidating Distribution") out of the aforementioned claims, and makes a demand for liquidating distribution based on Article 51, paragraph (1) of the Civil Execution Act (the "Demand for Liquidating Distribution"), thereby arguing that the interruption of extinctive prescription has become effective with regard to the Claim to Demand Liquidating Distribution.

2. The outline of the facts determined by the court of prior instance is as follows.

(1) The rules of the appellant provide that owners of the building in the housing complex of the Condominium should pay management fees, repair reserve fees and exclusive warehouse maintenance fees, etc. to the appellant every month by the 27th of the preceding month and that if they become delinquent in paying, they should pay delay damages at a rate of 0.4 yen per day from the day following the due date for payment.

(2) In April 2011, the commencement of the Compulsory Auction was decided and the appellant made the Demand for Liquidating Distribution in June 2011.

(3) A petition for the Compulsory Auction was withdrawn in July 2011.

(4) As of the time when the appellee acquired the Building Element, the Successee was delinquent in paying the management fees, etc. referred to in (1) above as stated in the Description of Delinquent Management Fees, etc. in Attachment 2 of the judgment in first instance.

(5) In this lawsuit, the appellee invoked extinctive prescription with regard to the Claim to Demand Liquidating Distribution, etc.

3. Based on the facts mentioned above, the court of prior instance ruled as summarized below, determined that the Claim to Demand Liquidating Distribution has been extinguished by prescription, and upheld a part of the appellant's claims and dismissed the other claims.

When an obligee who holds a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act has made a demand for liquidating distribution in real property auction procedures, in order for the interruption of extinctive prescription to become effective by considering the claim to demand liquidating distribution in the aforementioned demand for liquidating distribution as being equivalent to attachment (Article 147, item (ii) of the Civil Code prior to the amendment by Act No. 44 of 2017), it is reasonable to consider that liquidating distribution of the proceeds of the sale or delivery of payment money (hereinafter referred to as "liquidating distribution, etc.") needs to have been implemented without an opposition to liquidating distribution having been filed by the obligor with regard to the aforementioned claim to demand liquidating distribution. In this case, a petition for the Compulsory Auction was withdrawn and liquidating distribution, etc. was not implemented without an opposition to liquidating distribution having been filed by the Successee with regard to the Claim to Demand Liquidating Distribution. Therefore, it cannot be said that the interruption of extinctive prescription has become effective with regard to the Claim to Demand Liquidating Distribution as a result of the Demand for Liquidating Distribution.

4. However, the aforementioned determination of the court of prior instance cannot be accepted for the following reasons.

The statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. is deemed to be the statutory lien for expenses for the common benefit, which is a general statutory lien, (Article 306, item (i) of the Civil Code) in terms of the order of priority and effect (Article 7, paragraph (2) of the Act on Building Unit Ownership, etc.). The act of an obligee who holds a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. making a demand for liquidating distribution in real property auction procedures based on Article 51, paragraph (1) of the Civil Execution Act (including the case where the relevant provisions are applied mutatis mutandis pursuant to Article 188 of the same Act) is an active act intending to realize his/her right through the exercise of the aforementioned statutory lien in the same manner as in the case where the aforementioned obligee files a petition for a secured real property auction by him/herself. In order for the aforementioned obligee who made the aforementioned demand for liquidating distribution to actually receive liquidating distribution, etc., the fact that the obligee holds the aforementioned statutory lien for the claim to demand liquidating distribution must be found to have been proved with the documents set forth in the items of Article 181, paragraph (1) of the Civil Execution Act (hereinafter referred to as the "statutory documents") by the execution court. If that fact is not found to have been proved, the aforementioned demand for liquidating distribution is to be dismissed as being unlawful by the execution court. These also apply to the statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act.

Given these, the following interpretation is reasonable: when an obligee who holds a statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act has made a demand for liquidating distribution in real property auction procedures, in order for the interruption of extinctive prescription to become effective by considering the claim to demand liquidating distribution in the aforementioned demand for liquidating distribution as being equivalent to attachment (Article 147, item (ii) of the Civil Code prior to the amendment by Act No. 44 of 2017), it suffices that the fact that the obligee holds the aforementioned statutory lien is proved with the statutory documents during the aforementioned procedures and it is not necessary that liquidating distribution, etc. has already been implemented without an opposition to liquidating distribution having been filed by the obligor with regard to the aforementioned claim to demand liquidating distribution.

5. The court of prior instance determined that the part of the appellant's claims concerning the Claim to Demand Liquidating Distribution and the demand for payment of delay damages accrued thereon should be dismissed without examining whether the fact that the appellant holds the statutory lien referred to in Article 7, paragraph (1) of the Act on Building Unit Ownership, etc. as applied mutatis mutandis pursuant to Article 66 of the same Act was proved with the statutory documents during the procedures for the Compulsory Auction. However, based on the explanations above, this determination of the court of prior instance contains violation of laws and regulations that obviously affects the judgment. The argument of the counsel to this effect is well-grounded, and of the judgment in prior instance, the aforementioned part should inevitably be quashed. Regarding said part, this case is remanded to the court of prior instance to have it further examine the aforementioned point, etc.

The appellant's final appeal concerning the other claims is dismissed as the appellant did not submit a document stating the reasons for a petition for acceptance of final appeal regarding them.

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

Justice OKAMURA Kazumi

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi