A Study on the Roof Platform of the Condominium

• Main Authors: MA,Feng-hsi, 馬逢禧
• Other Authors: 陳榮隆教授
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/26327481894313991626

碩士 === 輔仁大學 === 法律學系 === 101 === Abstract Condominium includes both the exclusive unit and common unit. For the exclusive unit, independence in construction and usage is indispensable. The prerequisite of an exclusive unit, according to Article 799.2 of the Civil Code, is that the property that is independent both in construction and in use, is the object of individual ownership. In addition, according to Article 3.3 of Condominium Administration Act, the exclusive unit is a unit in a condominium that is owned separately and used independently and is the object of partitioned ownership. There are two sources of law defining a condominium. First, Article 799.1 of the Civil Code states: “A condominium is a building that is partitioned by several persons. Each of these persons owns an exclusive unit of it and has individual ownership of the exclusive unit, and the common elements of the building and its accessories held”. Second, Article 3.1 of Condominium Administration Act defines the condominium as “a building and its base that has indicated definite boundaries structurally, or in its uses or on the construction license plans, and may be divided into a number of units”. The common ownership can be divided into conventional common ownership and statutory common ownership. The buildings of statutory common ownership include the common unit in terms of construction and nature. The terms are defined and analyzed for distinction. The use types of roof platforms and dispute types of their use right. The attribution of roof platform use right. The theories regarding the boundary wall ownership include the space theory, wall surface theory, wall center theory and division theory (compromise theory). The main dispute points of the space right lie in whether the object conforms to the legal definition of properties, the conflict between the space right and the principle of one property, one right and whether the space right meets the requirements of the Principle of the Right in rem created exclusively by statutes. The right to exclusive use of roof platforms, its definition and subject and object of the right to exclusive use. The acquisition and nature of the right to exclusive use. The right to exclusive use is granted via the seven patterns as follows: purchase and sell agreements, draft contracts, conventions, partitioning owners meetings, implications, civil code regulations on common ownership and house builders. The perish of the right to exclusive use. Water leakage repair and bearing of its cost. Management and repair of common unit or conventional common unit. Exclusive unit or conventional exclusive unit management and repair, roof platform water leakage repair, neighbor use right and neighbor tolerance obligation. Structures added to the roof platform, the scope of the exclusive use right of the roof platform user and the use of roof platform are explored and analyzed in terms of non-conventional exclusive use and conventional exclusive use. The legal character of structures on the roof , the legal character of non-structures on the roof, the character of construction behavior on the roof and the legal character of roof platform exclusive use. Whether the roof platform may be agreed as exclusive is not expressly stipulated and the statutory common unit is changed into the exclusive righ5 to use. Despite there is an agreement among the partitioning owners that the roof platform belongs to the top floor owner (as agreed between the constructor and individual buyers in the house sale agreement), based on the practices and the general opinions, the top floor owner do not necessarily have the right to build structures on the roof platform. Practical perspective example: the construction of structures on the roof platform brings changes to the nature and usage of the original building and trespasses the exclusive right to use, therefore, no structure may be added on the roof platform without authorization of other partitioning owners (refer to the 1992 Taishangdzu no.1873 judgment and 1988 Taishangdzu no.1766 judgment of the Superem Court).The legal nature of the exclusive right to use the roof platform, the lease right theory and common property use theory according to the scholars’ perspectives. The resolution of a partitioning owners meeting. The exercise of the use right of the roof platform involves the administration of roof platform and resolution to tear down the illegal structural addition on the roof platform. The prevention of noise vibration and air pollution from the roof platform used for agricultural and specific purposes and divided superficies. Exploration on the feasibility of setting the agricultural right on the roof platform from the perspective of leasing roof platform for planting crops. Prevention of noise vibration and air pollution from specific use and the partitioning surface rights. Acquisition of the partitioning surface rights of the buildings above the underground metro, railway and high-speed railway lines or buildings above the underground metro line and the reparation for the damages. Restrictive registration of land use promise. Analysis on addition of cooling tower on the roof platform based on neighboring relation in the Property Right Chapter of the Civil Code and the Condominium Administration Act. When a pigeon house is constructed on the roof platform, the partitioning owner neighbors suffering from the intrusion of odor may claim prohibition on the odor of the excrement of the pigeons to the pigeon house owner based on the revised Article 793 of the Civil Code. Noise control on the agricultural tools operated in vertical farms. Installation of advertisements and base stations must have the permission of the partitioning owners. Administration of advertisements. Advertisement signs and installation of advertisements are subjected to permission. Prevention of advertisement light pollution. Sanctions on illegal installation of advertisements. For the legal issue of roof platform advertisements extending downstairs without approval, is the “external wall” structure the exclusive unit or common unit? Since the external wall is not commonly owned, the building owners can remove the intrusion by exercising the petition right on property and request dismantling of the advertisements hung on the external wall and sanctions on illegal installation of advertisements. For installation of mobile base stations, in the case of conflicts between telecommunication business development and the partitioning owners and discrepancy between the Condominium Administration Act and the Telecommunications Act in applicability, a permission must be gained to set up base stations on the roof platform for remuneration to use. The advantage of distinction between Article 32.5 and Article 33.3 of the Telecommunication Act and Article 8.1 of the Condominium Administration Act . For the conflict of concurrence between Article 33 of the Telecommunication Act and Article 33.2 of the Condominium Administration Act, is it possible to make the interpretation that since the special law prevails over the common law, Article 33 of the Telecommunications Act will apply first? This is because Article 8.1 does not apply to the installation of base stations and the permission of partitioning owners of the building is not required. Therefore, according to Article 32.4 and 33.2 of the Telecommunications Act, does the administration committee or the administration commissioner of condominium have the right to provide the roof platform for installation of the base station on a non-free basis? For the practical perspectives, there are both positive and negative answers to this question. Legal principles sacrificed. To negate conflict between the Condominium Administration Act Building and the Telecommunications Act, it is advisable that the latter can make a concession. The purpose of legislation of Article 33 of the Condominium Administration Act. A comprehensive planning of the installation of base stations is necessary. Protection of utilities infrastructure development. Protection of mobile communication business and consumer rights. Consideration of both the public opinion and development of telecommunication industry. Prosepect of telecommunication industry and legal support. Examples of telecommunication legislation of Japan and Hong Kong. Prospect of future legislation.