The Supreme Court rendered the 103-Tai-Shang-2247 Civil Decision of October 29, 2014 (hereinafter, the "Decision"), holding that if it is agreed that the statutory vacant land of an apartment or condominium shall be used by certain separate owners who fail to use the land in agreed-upon manners, although the other separate owners may request that the outcome of such usage which violates the agreement be eliminated, still such certain separate owners still have the right to use such statutory vacant land and the other separate owners still cannot request the return of the statutory vacant land before the agreement on separate control is terminated pursuant to law.
According to the facts underlying the Decision, the Appellee asserted that both parties are separate owners of the community at issue and requested that the Appellant be ordered to demolish the structure in the public land and return the occupied land to all joint owners in accordance with Article 767, Paragraph 1 and Article 821 of the Civil Code. It was held in the original decision that although agreement on separate control asserted by the Appellant represents the consent of all separate owners to allow the Appellant's occupation and use of the portion set forth in the attached drawing of the land at issue, still the Construction Management Office of Taipei City Government pointed out that the agreement on separate control mentioned by the Appellant did allow a superficiary structure to illegally occupy the access road to the fire escape and fire barriers and thus the agreement on separate control shall be deemed to be invalid in whole due to the invalidity in part. Therefore, the Appellee's complaint filed to seek the return of the land was found to be well-grounded in the original decision. Dissatisfied, the Appellant appealed.
Article 7 of the Apartment and Condominium Administration Statute provides specifically as follows: "Any of the shared areas of a condominium may not be used as part of an individual unit. The items specified in the following subparagraphs may not be designated as designated private areas: 1. The lot the condominium is built on; 2. The hallways or stairs leading to a number of individual units, the passages or vestibule leading to the outdoors, and the alleys and fire escape alleys within the community; 3. The foundation, principal beams and pillars, load-bearing walls, and the structures of floors and roof of the condominium; 4. When such designation is in violation of related laws; and 5. Any other shared areas that have been designed for particular purposes and are indispensible in the daily activities of all the unit owners."
According to the Decision, for circumstances other than those set forth in Article 7 of such statute, it is still permissible to agree that certain persons among separate owners may have an exclusive usage right and may become an object of an agreed-upon exclusive usage right. Regarding the complaint filed to return a statutory vacant land in this matter, part of the land is intended for fire barriers and part of the land is intended for an access road for the fire escape and thus no structure should be set up thereon, the original trial court failed to ascertain if part of the statutory vacant land is not an object whose exclusive usage right may be agreed upon or is an object whose exclusive usage right may be agreed upon.
It was further elucidated in the Decision that if it is agreed that a statutory vacant land of an apartment or condominium will be exclusively used by certain separate owners when such certain separate owners have failed to use the land in agreed-upon manners, although the other separate owners may request that the outcome of such use that violates the agreement be eliminated (e.g., if a kitchen is constructed in a statutory vacant land which is agreed to be used as parking spaces in violation of the agreement, the other separate owners will have the right to request the demolition of the kitchen), the certain separate owners still have the right to use the statutory vacant land and the other separate owners still cannot request the return of such statutory vacant land before the agreement on separate control is terminated pursuant to law.
It was further concluded in the Decision that the original decision which concluded that the Appellee may request the return of the statutory vacant land without the lawful termination of the agreement on separate control should be further clarified and was therefore reversed and remanded.