Part Ⅲ Rights In Rem
Chapter 3 Superficies
Section 1- General Superficies
A general superficies is the right to use the land of another person with the purpose of constructing a building or other works thereon or thereunder.
If the superficies without a definite duration has existed for more than twenty years, or the purpose of establishing the superficies has no longer existed, the court may, upon the request claim by the parties, fix the duration or terminate the superficies after considering the purpose of establishing the superficies as well as the type, nature, and using conditions of the building or works.
If a superficies without a definite duration is established for the purpose of public constructions, the duration of the superficies shall terminate upon the completion of the public construction.
If a superficies is of no rental, the superficiary may waive his/her right at any time.
If the superficies has a fixed duration and an agreed-upon rental, the superficiary may waive his/her rights after having paid the rental for the next three years.
If the superficies has an indefinite duration and an agreed-upon rental, and the superficiary may waive his/her rights, by either notifying the landowner one year before the waiver, or paying one-year rental.
If the land cannot satisfy the original purpose of use for reasons not imputable to the superficiary, the superficiary may waive his/her rights after paying half of the rental as specified in the preceding two paragraphs. If the land cannot satisfy the original purpose of use for reason imputable to the landowner, the superficiary may waive his/her rights and therefore be exempted from paying the rental.
If the rise or fall in land value after the creation of a superficies makes the original rental arising therefrom obviously unfair, the party may file a claim with the court to increase or reduce the rental.
If the superficies has no rental and the burden unexpectedly increased after the creation of the superficies make it obviously unfair to use the land for free, the landowner may file a claim with the court to fix the rental.
Where the superficiary has delayed the payment of the rental which has accumulated to the amount equivalent to the total rental for two years, the landowner is entitled to fix a reasonable time and notified the superficiary to pay the rental, if the superficiary does not pay within the fixed period, the landowner is entitled to terminate the superficies, unless otherwise provided by the custom. If a mortgage is created on the superficies, the mortgagee shall also be informed about such notice.
If the agreement of rental has been registered, when the superficies is transferred, the rental owed by the former superficiary shall also be taken into consideration. The transferee is jointly and severally liable with the transferor for the rental owed by the former superficiary.
The termination as specified in the first paragraph shall be made by an expression of intent to the superficiary.
When the ownership of the land is transferred, the rental paid in advance shall not be effective against a third party unless it has been registered.
The superficiary shall use the land and acquire profits therefrom according to the purpose of creating such superficies and the agreed method of use. If the method of use has not been agreed upon, the nature of the land shall be followed. However, the sustainable use for the land shall be maintained in following either one.
The agreed method of use as specified in the preceding paragraph shall not be effective against a third party unless it has been registered.
When the superficiary violates the provision of the first paragraph of the preceding article, the landowner is entitled to terminate the superficies if the superficiary ignores his inhibition. If a mortgage is created on the superficies, the mortgagee shall also be informed about such inhibition.
The superficiary is not entitled to claim for a release or reduction of the rental even if he is hindered by force majeure from using the land.
The superficiary is entitled to transfer his/her rights to another person or create a mortgage, unless otherwise provided by the agreement of contract or the custom.
The agreement as specified in the preceding paragraph shall not be effective against a third person unless it has been registered.
A building or other works and the superficies thereon cannot be separately transferred or created other rights.
Where the land and a building on such land are owned by the same person, a superficies is deemed to have been created and to exist at the time when the land and the building are thereafter sold by auction of compulsory execution to different bidder, and the rental, term, and scope of the superficies shall be determined by agreement between the parties. If such an agreement cannot be reached, the parties can apply to a court for a judgment determining these. The same rule shall apply when either the land or the building is auctioned.
The superficies as specified in the preceding paragraph is distinguished by the destruction of the building.
When the superficies is extinguished, the superficiary is entitled to take his works back provided that the status quo ante of the land shall be restored.
If the superficiary does not take his works back within a month after the superficies is extinguished, those works belong to the landowner, and if it obstructs the use of the land, the landowner is entitled to have the status quo ante restored.
The superficiary shall inform the landowner before he takes his works back. If the landowner would like to purchase them at current market price, the superficiary can not refuse to sell without a good cause.
Where the work of the superficiary is a building and the superficies is extinguished due to expiration, the superficiary is entitled to fix a period more than a month before the expiration, and request the landowner to compensate him according to the current market price of such building. However if it is otherwise provided by the agreement of contract, such agreement shall be followed.
The landowner refuses the request for compensation as specified in the preceding paragraph or does not respond within the period fixed, the duration of superficies shall consider to be extended. If the superficiary refuses to extend, he is not entitled to request for compensation as specified in the preceding paragraph.
If the current market price as specified in the first paragraph cannot be agreed upon, the superficiary or the landowner may apply to a court to determine it. The provision of the preceding paragraph shall be applied if the landowner refuses to compensate according to the current market price decided.
Extending the duration according to the second paragraph, the duration shall be determined by agreement between the landowner and superficiary. If such an agreement cannot be reached, they can apply to a court for a judgment to determine it by taking the interest of using the building and the land into consideration.
The provisions of the first and the second paragraph shall not apply after the expiration as specified in the preceding paragraph, expect there is an agreement between the land owner and the superficiary.
A superficies is not extinguished by virtue of the loss or destruction of the building or other works.
Section 2 - Divided Superficies
A Divided Superficies is a superficies created within a certain scope of space on or under other’s land.
A divided superficiary may enter into an agreement regarding the limits on uses and profits with the person who has the rights to use and profit upon or under the land where a divided superficies is created. If the agreement is not consented to by the landowner, the landowner shall not be bound by it after rights to use and profit the land have extinguished.
The agreement provided in the preceding paragraph shall not be effective against a third party unless it has been registered.
The court shall consider a third party’s interests in determineing the duration of the Divided Superficies according to the fourth paragraph of Article 840 if the third party’s rights will be affected.
Where a divided superficies has been compensated at current market price or extended the duration according to Article 840, and the rights of a third party could have been affected, the third party should be reasonably compensated. The sum of compensation shall be determined by an agreement, if such agreement cannot be reached, the parties can apply to a court to determine it.
Where a divided superficies and the right in rem for the purpose of use both exist on the same land at the same time, the exercise of the later created right in rem cannot interfere with the right in rem created ahead.
Unless otherwise provided in this section, the provisions of general superficies shall be mutatis mutandis applied to divided superficies.