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  • Interpretation
  • No.776【Map-overlay Control over the Set-up of a Parking Area in the Adjacent Land】
  • Date
  • 2019/04/12
  • Issue
    • Is indefinite map-overlay control over the adjacent land resulting from the combined application of two Letters, namely the Ministry of the Interior Letter Nei-Ying-727291 of 1989 regarding the set-up of a parking area in the adjacent vacant land with map-overlay control and applying for change in the use of a building, and the Ministry of the Interior Letter Nei-Ying-907380 of 1991, which provides that an expiration date shall not be attached to the letter of consent for land use required by Article 30 of the Building Act, with its scope in practice being expanded to include the application for a “usage alteration license,” contrary to the purport of property right protection as guaranteed by Article 15 of the Constitution?
  • Holding
    •        In the event that the owner of a building needs to set up a parking area in the adjacent vacant land to apply for a usage alteration license and needs the owner of the adjacent land to provide a letter of consent for land use, an expiration date shall be attached to such a letter. If the competent authority approves the application for a usage alteration license in the event that an expiration date is attached to the letter of consent for land use provided by the owner of the adjacent land, the competent authority shall provide a usage alteration license in which a corresponding expiration date is specified, and shall only exercise map-overlay control over such adjacent land until the date thereof. In addition, when an agreed land-use relationship is dissolved (e.g., due to legal termination of a land-use relationship), the competent authority may, either by its own authority or in response to application from the owner of the adjacent land, revoke the usage alteration license previously granted and cancel map-overlay control, so as to comply with the purport of property right protection as guaranteed by Article 15 of the Constitution.
      
    •        The Ministry of the Interior issued the Letter Nei-Ying-727291 on August 24, 1989, which provides: “Subject Matter: With regard to the application for a change in the use of a building …. Explanation: … 2. The set-up of a parking area in the adjacent vacant land is approved and may proceed in accordance with Articles 59 and 59-1 of Regulations on Techniques of Building Design and Construction if its use neither causes any blockade nor serves other purposes than parking under map-overlay control, and is consented by the owner of the adjacent land.” In addition, the Ministry of the Interior issued the Letter Nei-Ying-907380 on March 22, 1991, which provides: “Subject Matter: With regard to whether an expiration date may be attached to the letter of consent for land use as the certificate of land rights required by Article 30 of the Building Act …. Explanation: … 2. … it seems not appropriate to have expiration dates attached to letters of consent for land use in the general applications for construction, given that buildings normally do not have any definite expiration dates;” in practice, the scope of this Letter is thus expanded to include the application for a “usage alteration license.” As a result of the combined application of the above two Letters, the owner of the adjacent land is unable to provide the letter of consent for land use with an expiration date, which causes his land to be under indefinite map-overlay control. Furthermore, the landowner is therefore unable to apply for revocation of the usage alteration license previously granted upon the dissolution of the land-use relationship and the cancellation of map-overlay control becomes impossible. This infringes upon the exercise of the owner’s property rights and is contrary to the purport of property right protection as guaranteed by the abovementioned Article of the Constitution. As such, the two Letters should cease to be applicable in this regard after the announcement of this J.Y. Interpretation.
  • Reasoning
    •        The Petitioner Hung-Chih LIU, the owner of a land located in Taichung City with a certain land serial number (hereinafter the “Disputed Land”), provided the “letter of consent for land use” on July 5, 1993 and agreed that the entire area of the Disputed Land could be used for parking purpose by a third party, who had previously applied for a usage alteration license to change the use of the building located on the adjacent land of the Disputed Land (hereinafter the “Disputed Building”) (with which the original underground shopping mall was changed into public baths and seven parking spaces were set up in the Disputed Land) in April, 1993. As recorded in the general review section of the usage alteration license review form by the Construction Bureau of Taichung City Government (as known prior to the 2010 reorganization; hereinafter the “Construction Bureau”), “1. The shopping mall on level B1 … was changed into public baths. (The parking area maintains its original use) …. 2. Pursuant to the Ministry of the Interior Letter Nei-Ying-727291 of 1989, seven more parking spaces shall be set up in the adjacent land (i.e., the Disputed Land) … and the land shall be under map-overlay control to prevent other uses than parking ….” Then on August 3, 1993, the Construction Bureau informed the third party: “… 2. Please report to the competent authority for inspection after the construction is completed in accordance with the approved drawings. The parking area set up in the adjacent land shall be under map-overlay control ….” On October 16, 1993, the Construction Bureau issued a letter to approve the application for a usage alteration license. The aforementioned Ministry of the Interior Letter Nei-Ying-727291 of August 24, 1989 (hereinafter “Disputed Letter 1”) provides: “Subject Matter: With regard to application for a change in the use of a building …. Explanation: … 2. The set-up of a parking area in the adjacent vacant land is approved and may proceed in accordance with Articles 59 and 59-1 of Regulations on Techniques of Building Design and Construction, if its use neither causes any blockade nor serves other purposes than parking, and is approved by the owner of the adjacent land.”
      
    •        Thereafter, on January 22, 2013, on the grounds that the land-use relationship was dissolved, the Petitioner applied to the Urban Development Bureau of Taichung City Government (as known after the 2010 reorganization; the Defendant in the case which results in this J.Y. Interpretation; hereinafter the “Urban Development Bureau”) for the cancellation of map-overlay control over the Disputed Land. The Urban Development Bureau issued a letter in reply to the Petitioner’s request on February 27, 2013 stating that “… 4. The investigation into this case demonstrates that a change of use in the building had been made (the original Usage License Chung-Kung-Chien-Shih-3954 of 1988 and the Approval Letter for Usage Alteration No. 40902 of August 3, 1993). The land with the address of…provided for parking is under map-overlay control, currently as recorded and ready for reference. For a change of use in the parking area, please apply for a usage alteration license in accordance with the rules mentioned above.” On March 29, 2013, the Petitioner once again applied to the Urban Development Bureau for the cancellation of map-overlay control over the Disputed Land, this time requesting a definite decision from the Urban Development Bureau. On April 23, 2013, the Urban Development Bureau issued a letter in response to the Petitioner again stating that “… 2. As shown in the photocopy of the “letter of consent for land use” you provided, you had agreed that the entire area of the land with the land serial number as specified in the subject could be used by … (the third party hereof) for parking. Moreover, it is found after inspection there is no expiration date specified in such a letter of consent. 3. For any changes of use in the building or car parking spaces in the statutory vacant land, please follow the instructions as provided by the letter issued by the [Urban Development] Bureau on February 27, 2013.” The Petitioner filed an administrative appeal against this decision. The Taichung City Government rendered a decision of dismissal to the Petitioner’s appeal for revocation of the letter issued by the Urban Development Bureau on April 23, 2013 and rejected all the remaining claims. The Petitioner therefore filed an administrative lawsuit, in which he received a disfavored decision from the Taichung High Administrative Court Judgment Su-401 (2013). Afterwards, the Petitioner’s appeal to Supreme Administrative Court was dismissed as illegitimate through the Supreme Administrative Court Order Tsai-535 (2014). The Taichung High Administrative Court Judgment Su-401 (2013) shall be the Final Judgment on this petition. [Note]
      
    •        The Petitioner expressed doubts as to the constitutionality of Disputed Letter 1 applied in the Final Judgment and thus petitioned for the J.Y. Interpretation. The Court considered the petition satisfied the requirements as specified by Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and decided a review shall be granted accordingly.
      
    •        Moreover, the Ministry of the Interior had issued the Letter Nei-Ying-907380  (hereinafter “Disputed Letter 2”) on March 22, 1991, which provides: “Subject Matter: With regard to whether an expiration date may be attached to the letter of consent for land use as the certificate of land rights required by Article 30 of the Building Act…. Explanation: … 2. … it seems not appropriate to have expiration dates attached to letters of consent for land use in the general applications for construction, given that buildings normally do not have any definite expiration dates ….” Though promulgated specifically to interpret Article 30 of the Building Act (“To apply for a construction license or miscellaneous license, the proprietor shall submit a letter of application, the certificates of land rights, working drawings and specifications”), Disputed Letter 2 provides that an expiration date shall not be attached thereto, and in practice its scope is expanded to include the application for a “usage alteration license” (see the Construction and Planning Agency Letter Nei-Shou-Ying-Chien-Kuan-1050806658 of May 13, 2016 in reply to this Court for further reference). For this reason, the owner of the adjacent land, who had provided the land for parking in accordance with Disputed Letter 1, could only provide the letter of consent for land use without an expiration date. This further gives rise to  doubts as to whether the owner’s property rights, as guaranteed by the Constitution, are infringed with his land being subject to indefinite map-overlay control. To assess the petition as a whole, this Court regards Disputed Letter 2 as related and necessary and hence includes it as an object to be interpreted (see the J.Y. Interpretations Nos. 737 and 747 for further reference), hereby rendering this J.Y. Interpretation for the following reasons:
      
    •        Article 15 of the Constitution provides that people’s property rights shall be guaranteed, in order that property owners may exercise legal capacities to use, profit from, or dispose of their property freely, considering the status of such property, and shall be protected from harms by state power or any third party. It is to ensure the resources on which people rely to survive and freely develop their personalities (see the J.Y. Interpretations Nos. 596, 709, 732, 763 and 771 for further reference).
      
    •        Originally, in respect of a land-use relationship governed by private law, landowners may provide others with the land for them to apply for a usage alteration license, either with or without a definite expiration date for use, based upon the owner’s right to land and the principle of freedom of contract. In addition, whether there exists a definite expiration date for the use of the provided land or not, the parties hereto are not disallowed to terminate the land-use relationship through legal means. Consequently, the letter of consent for land use shall have an expiration date attached thereto if it is provided to the competent authority for review. If the competent authority grants a usage alteration license in the event that an expiration date is attached to the letter of consent for land use provided by the owner of the adjacent land, the competent authority shall provide a usage alteration license which stipulates a corresponding expiration date and only exercise map-overlay control over such adjacent land for the duration until the date thereof. In addition, when an agreed land-use relationship is dissolved (e.g., due to legal termination of a land-use relationship), the competent authority may, either by its own authority or in response to application from the owner of the adjacent land, revoke the usage alteration license previously granted and cancel the map-overlay control. The regulation requiring the letter of consent for land use to be included in the application for a usage alteration license, if complying with the conditions set forth above, is not contrary to the purport  of property right protection as guaranteed by the Constitution.
      
    •        As approved by Disputed Letter 1, a usage alteration license can be applied for in accordance with Articles 59 and 59-1 of Regulations on Techniques of Building Design and Construction if the set-up of parking spaces in the adjacent vacant land neither causes any blockade nor serves other purposes than parking under map-overlay control, and is agreed by the owner of the adjacent land. However, Disputed Letter 1 does not provide applicable regulations when an agreed land-use relationship is dissolved. In addition, pursuant to the interpretation provided by Disputed Letter 2,  that is, it “seems not appropriate to have an expiration date attached” to the required letter of consent for land use in the application for a construction license or miscellaneous license, the scope of this interpretation is therefore expanded to include the application for a usage alteration license and makes the owner of the adjacent land unable to provide the letter of consent for land use with an expiration date. As sufficient evidences, the abovementioned Construction and Planning Agency Letter Nei-Shou-Ying-Chien-Kuan-1050806658 in reply to this Court also makes reference to Disputed Letter 2 and reads that “it seems not appropriate for the letter of consent for land use to have an expiration date attached thereto” in the event of setting up a parking area in the adjacent vacant land and having the owner of the adjacent land to provide the letter of consent for land use. As a result of the combined applications of Disputed Letters 1 and 2, the owner of the adjacent land is unable to provide the letter of consent for land use with an expiration date attached thereto when applying for a usage alteration license, and his land is thus under indefinite map-overlay control.
      
    •        The Ministry of the Interior issued the Letter Nei-Ying-0910085102 on July 24,  2002, which provides: “For the set-up of a parking area in vacant land…the competent authority shall specify in the usage alteration license applied for that the area is provided for parking by lease during the term of the lease agreement in accordance with Explanation 2 of the Ministry of the Interior Letter Nei-Ying-8983167 of April 27, 1990, which reads: ‘If the lease agreement is used as the certificate of land rights in the application for construction of a building, to protect the rights of a bona fide third party, the competent authority shall specify in the construction license and usage license that the lease agreement for the purpose of construction shall be the certificate of land rights.’” However, this Letter only requires that the competent authority “shall specify in the usage alteration license applied for that the area is provided for parking by lease during the term of the lease agreement.” It does not provide a definite answer to whether or not an expiration date can be attached to the letter of consent for land use, nor does it expressly provide whether or not a corresponding expiration date can be attached to the usage alteration license.
      
    •        Furthermore, as the Ministry of Interior explained, the owner of the adjacent land shall apply for the cancellation of map-overlay control pursuant to Article 73, Paragraph 2, First Sentence of the Building Act: “Buildings shall be used according to the approved usage classification. In case of alteration to the usage class, or main structure, fire-protection segment, fire-protection refuge facilities, fire-fighting equipment, and parking spaces other than prescribed in Article 9, or other alteration to the originally approved usage, the usage alteration license shall be applied for,” and pursuant to Article 8 of the Building Usage Classification and Alteration Regulations, which reads: “According to Article 73, Paragraph 2, First Sentence of the Building Act, in case of alteration to the usage class, or main structure, fire-protection segment, fire-protection refuge facilities, fire-fighting equipment, and parking spaces other than prescribed in Article 9, or other alteration to the originally approved usage, the usage alteration license shall be applied for in accordance with the following rules: … 5. Alteration to the usage of buildings or statutory vacant land for the parking spaces of cars or motorcycles ….” (see the abovementioned Construction and Planning Agency Letter Nei-Shou-Ying-Chien-Kuan-1050806658 in reply to this Court for further reference) However, when applying for a usage alteration license, the owner of the adjacent land shall provide the competent authority with the original copy or photocopy of the usage license, as well as the certificates of rights to buildings as stipulated by the Regulations on Building Management and Autonomy, which were enacted by local self-governing bodies (see the Ministry of the Interior Construction and Planning Agency Letter Ying-Shu-Chien-Kuan-0950035539 of July 24, 2006 for further reference), such as the photocopy of the certificate of rights to buildings (see Article 30 of the Regulations on Building Management and Autonomy of the Taipei City for further reference). Because the owner of the adjacent land does not personally hold these documents, there is no way the owner of the adjacent land can apply for a usage alteration license and then has the map-overlay control cancelled when the land-use relationship is dissolved, except if the holder of these documents cooperates and provides them.
      
    •        In summary, in the event that the owner of a building needs to set up a parking area in the adjacent vacant land to apply for a usage alteration license and needs the owner of the adjacent land to provide the letter of consent for land use, an expiration date shall be attached to such a letter. If the competent authority approves the application for a usage alteration license in the event that an expiration date is attached to the letter of consent for land use provided by the owner of the adjacent land, the competent authority shall provide a usage alteration license in which a corresponding expiration date is specified and shall only exercise map-overlay control over such adjacent land until the date thereof. In addition, when an agreed land-use relationship is dissolved (e.g., due to legal termination of a land-use relationship), the competent authority may, either by its own authority or in response to application from the owner of the adjacent land, revoke the usage alteration license previously granted and cancel map-overlay control, so as to comply with the purport of property right protection as guaranteed by Article 15 of the Constitution. With the scope of the combined applications of Disputed Letters 1 and 2 being expanded to include the application for a “usage alteration license,” the owner of the adjacent land is unable to provide the letter of consent for land use with an expiration date, and his land is under indefinite map-overlay control. This infringes upon the exercise of the owner’s property rights and is contrary to the purport of property right protection as guaranteed by the abovementioned Article of the Constitution. The two Letters should cease to be applicable in this regard after the announcement of this J.Y. Interpretation. The owner of the adjacent land, after the land-use relationship is dissolved, may apply to the competent authority for the termination of the usage license previously granted and ask for the cancellation of map-overlay control pursuant to this J.Y. Interpretation.
      
    •        Furthermore, the Petitioner argued that Article 73, Paragraph 2, First Sentence and Article 74 of the Building Act, Article 8, Paragraph 5 of the Building Usage Classification and Alteration Regulations, and the administrative action of map-overlay control in this case which results in this J.Y. Interpretation are in conflict with the Constitution. Although the above-mentioned rules or regulations were applied in the Final Judgment, the Petitioner’s claim is still insufficient to identify in a concrete manner that such rules and regulations are, objectively, in conflict with the Constitution. In addition, the administrative action of the map-overlay control in the case is considered an administrative disposition and is not an object for interpretation by this Court’s standards for review of constitutionality. It is hereby declared that the said part of the petition does not satisfy the requirements as specified by Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and shall not be granted review according to Paragraph 3 of the same Article.
      
    • [Note] The Petitioner had brought a civil litigation against the user of the Disputed Land in accordance with Article 767 of the Civil Code. The Petitioner argued that the user shall either apply to the Urban Development Bureau for a usage alteration license to cancel the map-overlay control over the Disputed Land (the anterior claim), or ensure that the user’s rights of land use did not exist (the posterior claim). With regard to the anterior claim, the Taichung District Court Civil Judgment Chung-Su-5 (2015) had ordered the user to apply to the Urban Development Bureau for a usage alteration license to cancel the map-overlay control. The user of the Disputed Land appealed against the aforementioned Judgment. The Taiwan High Court Taichung Branch Court Civil Judgment Shang-21 (2016) reversed the Judgment made by the Court of First Instance and rejected the Petitioner’s claims in the Court of First Instance. The Petitioner appealed to the Supreme Court for this case, but the Supreme Court Civil Order Tai-Shang-3020 (2017) also rejected the Petitioner’s appeal.
      
    • ______________________
      
    • *Translated by Eleanor Y. Y. CHIN   
      
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