As registration of rights over immovables under the Land Law has the effect of public notice and creditability, the content registered must certainly be true and accurate to protect the people’s property right and to maintain security in transactions. The so-called immovables include land and buildings. Because a divisionally owned building is by nature a real property owned by a multiple number of persons of whom each owns a part, there exists a close and complex relationship among all owners in terms of their ownerships. Therefore, at the time of initial application for the registration of ownerships to such building, the scope of the object of each ownership must be clear and precise before the registration can be effected, so that the above purpose of the system of registration may be thoroughly realized. The Land Registration Regulations as amended on July 12, 1995, and the Regulations Governing the Implementation of Cadastral Surveys as amended on February 11, 1998, were both established by the Ministry of Interior under the authorization granted by the Land Law, Article 37, Paragraph 2, and Article 47, respectively. The Registration Regulations provide in Article 75, Subparagraph 1, for registration of the common area in a divisionally owned building, and Article 279, Paragraph 1, of the Survey Regulations is intended to determine the area and position of each part under individual ownership of a divisionally owned building as well as the part thereof in common use and the person to whom such individual ownership of the building belongs after transfer thereof, as a basis on which the land administration office may conduct the initial survey and registration of the divisionally owned building. Consequently, the provisions set forth in both Regulations have not gone beyond the scope of authorization granted by the Land Law and are consistent with the purpose of the registration system as stated above. They are essential for carrying out the procedure of the initial survey and registration of the ownership to a divisionally owned building, and have different normative functions and purposes from the provisions of the Civil Code, Article 799 and Article 817, Paragraph 2, with respect to presumed common use and the presumed equal share. It follows that such provisions should not be deemed to constitute restrictions not provided by law; nor do they conflict with the provision with respect to the protection of property right under Article 15 of the Constitution or the principle of reservation of law and the doctrine of proportionality embodied in Article 23 of the Constitution.    

    Like land, buildings (including divisionally owned buildings) are in law  important real property. However, there is a lack of comprehensive protection of the people’s property right as required by the Constitution because no specific provisions are included in the Land Law and other relevant laws with respect to the procedure of registration of ownership in a building and the procedure of survey, wherein important matters in connection with the right and obligations of the people are involved, such as identification of the common area for individual owners to a divisionally owned building, distribution of right attributable to individual owners and the proportion of the shares, and the mechanism for resolving disagreements or disputes between parties over the registered rights. Therefore, review and improvements must be made by way of clear and specific provisions to be prescribed by law.

    Article 15 of the Constitution, which provides for the protection of the people’s property right, is intended to ensure that individuals may exercise their right and power to make free use of, receive benefits from and dispose of their property in the condition as it exists (See J. Y. Interpretation No. 400). To protect the people’s property right and to safeguard in the meantime other persons’ freedom and the public interest, the legislature may, to the extent consistent with the doctrine of proportionality under Article 23 of the Constitution, establish various property systems to regulate the exercise of such right, by enacting laws or conferring upon administrative agencies clear authority to establish regulations for such purposes. The right over immovables is a property right protected by the Constitution. The Civil Code provides in Article 758 that: “A right over immovables, which is acquired, created, lost or altered in consequence of a juristic act, is not effective unless it is duly registered.” The Code also provides in Article 759: “A person who has acquired a right over an immovable by succession, compulsory execution, expropriation or a judgment of the court before registration, may not dispose of such right unless it is duly registered.” Thus, registration of the right is a requisite to alteration to or disposal of a right over an immovable, and a registration system is established by the Land Law and the regulations enabled thereby to govern the registration of rights over immovables. The registration of a right over an immovable perfected pursuant to the procedure required by such land law and regulations results in sufficient effect of public notice and credibility of the registration of such right. (See the Land Law, Article 43, and our Interpretation Yuan Tze No.1956). It is an important system for ensuring that all persons may exercise their right and power to make free use of, receive benefits from and dispose of their property. The registration must therefore be effectuated according to strict procedures, and the contents registered must undoubtedly be true and accurate to the extent that they agree completely with the true jural relations pertaining to the real property so that the people’s property right may be protected and the security in transactions may be maintained.

    The so-called immovables include land and buildings. A divisionally owned building is by nature a real property owned by a multiple number of persons of whom each owns a part, and each individual owner has not only a title to the part belonging to him or her exclusively but also co-ownership to the part other than the exclusive parts of the building and its accessories, namely the part in common use, in the share to which he is entitled. (See the Civil Code, Article 799, and the Condominiums and Residential Buildings Act, Article 3, Subparagraphs 2, 3 and 4), and such part in common use varies in position and area, depending upon the structure, design and function of the buildings as well as whether it is a part for common use by all individual owners because it is under co-ownership of all individual owners or it is a part for common use by some of the individual owners. The objects of ownerships of individual owners to the building being physically connected with each other and inseparable so far as their use is concerned, there exists a close and complex relationship among all owners in terms of their ownerships to the common area as well as their exclusive portions. Therefore, at the time of initial application for the registration of ownerships to a divisionally owned building, the scope of the object of such ownerships, namely the area and position of each exclusively owned part and the common area, must be clear and precise before the registration can be effected, so that the above purpose of the system of registration may be thoroughly realized.

    While the Civil Code provides in Article 799 and Article 817, Paragraph 2, for a rule of presumption in substantive law with respect to the part of a building under co-ownership and the individual shares thereto, more specific technical regulation of the registration procedure provided in the Act of Registration of Rights over immovables in respect of the procedure of registration of rights over immovables and survey is certainly allowable to ensure the accuracy and truthfulness of registration. In other words, while the rights of the individual owners are protected by the Civil Code, as cited above, if the common area of a divisionally owned building is not yet registered or is under dispute, the procedure of registration established by the Act of Registration of Rights over immovables must be followed when processing the registration of the right to such common area to ensure accurate registration of the right. The Land Registration Regulations as amended on July 12, 1995, and the Regulations Governing the Implementation of Cadastral Surveys as amended on February 11, 1998, were both established by the Ministry of Interior under the authorization granted by the Land Law, Article 37, Paragraph 2, and Article 47, then in force. Said Survey Regulations provide in Article 279, Paragraph 1, that “To apply for initial survey of a building, the applicant shall fill out an application form and submit the same together with the building use license and a layout drawing of the completed building and a photocopy thereof. In any of the following circumstances, the applicant shall submit such documents and photocopies thereof as may be required by applicable provisions: 1) A written agreement of distribution signed by all builders if the scope and position in a divisionally owned building to which the applicant is entitled is not identifiable based on the use license (Subparagraph 1); and 2) A transfer agreement or other documents if the applicant is not a builder (Subparagraph 2).” Subparagraph 1 is intended to ascertain the scope and position of the individual area owned by the applicant as well as the area under ownership in common in a building based on the agreement of all individual owners, if they are not identifiable by looking at the use license, and Subparagraph 2 is intended to identify the person to whom the ownership belongs in the case of any cause of transfer of the individual ownership to a divisionally owned building. Both are intended to provide the land administration office with an objective and precise legal basis for carrying out the survey and processing the registration. Furthermore, the Registration Regulations provide in Article 75, Subparagraph 1 (re-numbered Article 81, Subparagraph 1, as amended in 2001): “The common area in a building shall be assigned a separate building number and separately registered, and shall be dealt with pursuant to the following provisions: 1) Unless otherwise prescribed by law, each type of common area in the same building shall be combined and separately numbered and shall be separately registered as being co-owned by individual owners interested therein by taking into consideration the actual use made by such individual owners; provided however that the individual owners who do not need to use such common areas may be excluded.” The purpose of this subparagraph is to specify the practice of registration of the common areas of buildings under divided ownership. The requirement that the common area shall be registered as being co-owned by individual owners interested therein by taking into consideration the actual use made by such individual owners is intended to provide a basis for determining whether the area is a common area of a divisionally owned building; namely, whether the area, by its nature, is essential to the use of the building by its individual owners in light of the inherent usage of that part. The above provisions are made in view of the complex relations between the titles to the individual part and the common area of a divisionally owned building and the fact that the land administration agency has no power to make substantive judgment on the existence or non-existence of the right for which registration is applied (See the Land Law, Article 34-1, Paragraph 6; Article 46-2, Paragraph 2; Articles 56 and 59) within the scope of authority granted by the Land Law, and are consistent with the aforementioned purposes of the system of registration and essential to the procedure of ownership registration as well as the initial survey of divisionally owned buildings. Such provisions differ in normative functions and purposes from the presumptive provisions set forth in the Civil Code, Article 799 and Article 817, Paragraph 2, with respect to the part in common use and the individual shares, and should not be deemed to be imposing restrictions not provided for by law; nor are they contrary to Article 15 or the Constitution, which accords protection to property rights, or the principle of reservation of law and the principle of proportionality under Article 23 thereof.

    Like land, buildings (including divisionally owned buildings) are in law  important real property. While the Land Law defines in Article 5 the meaning of constructional improvements and provides specifically in Article 37, Paragraph 1, that land registration means the registration of the ownership to and other rights over land and constructional improvements thereon, no specific provisions, similar to those regulating the general registration of land, are included in the Land Law or in any other relevant laws with respect to the procedure of registration of ownership in a building and the procedure of survey or such important matters in connection with the right and obligations of the people with respect to identification of the common area by individual owners of a building under divided ownership, distribution of right attributable to individual owners and the proportion of the shares, the mechanism for resolving disagreements or disputes between parties over the registered rights (See the Land Law, Article 38, Paragraph 2, and Articles 48 to 71. This part of the text does not mention buildings), or such matters are being regulated by legal orders instead of laws (See the Land Registration Regulations, Articles 78 to 84). Hence, there is a lack of comprehensive protection of the people’s property right as required by the Constitution. Therefore, review and improvements must be made by way of clear and specific provisions to be prescribed by law.

*Translated by Raymond T. Chu.