Restriction on Unit Ownership Through the Concept of “Common Interests” in the Korean Condominium Act

The Korean Condominium Act grants separate ownership to the unit of condominium, and the common elements are owned by the unit owners as tenants in common. Article 5 of the Korean Condominium Act accepts the right to separate ownership and the provisions on oneself, and uses the concept of “common interests” as the scope or standard for the restriction on unit ownership. However, this is an extremely abstract concept, and its specific content is left to interpretation. Only when there is an appropriate interpretation of common interests and a clear standard for restricting unit ownership is derived from it, it serve as a practical and acutal solution tool in related disputes. In this paper, I examined the concept of “common interests,” which is the basis and standard for restricting condominium ownership, and the results are as follows. First, the practical basis for the restriction on unit ownership under the Korean Condominium Act lies in the relationship of sharing of common elements and the relationship of neighbors between units in the condominium. Second, Article 5 of the Korean Condominium Act, “common interest” is a kind of hypothetical interest assumed based on the above relationship, so attempts to be bound by the wording itself or to directly derive the criteria for limiting unit ownership from it should be avoided. Third, since the Korean Condominium Act differentiates the form of ownership based on the physical part of the condominium, the function and nature of the physical part affected by a specific act should be considered first when restricting the unit ownership. Therefore, if the act affects the common elements, the common elements are owned by all the unit owners as tenants in common and are directly related to their interests, so it can naturally be an act that goes against the common interest. Fourth, if the physical part affected by a specific act is an exclusive part like units, the law of neighbor should be applied since it is subject to separate ownership, and in this case, the focus should be on balance between unit owners’ interests rather than on the restriction on unit ownership itself.