A Study on Incorporation of Personalty into Realty

• Main Authors: Ming-hao Lin, 林敏浩
• Other Authors: Tsay-chuan Hsieh
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/77672820508328374393

碩士 === 東吳大學 === 法律學系 === 95 === When a personal property becomes an important component part of a real property through attaching, the owner of the real property acquires the ownership of such personal property (Article 811 of the Civil Code). Consequently, all other rights over such personal property are also extinguished (Article 815 of the Civil Code). A person, who has suffered injury by loss of rights through the above provisions, is entitled to claim compensation in accordance with the provisions concerning Unjust Enrichment (Article 816 of the Civil Code). These articles depict the incorporation of personalty into realty which this thesis studies on. The primary objective of setting up a legal system for the incorporation of personalty into realty is to protect economical interests in the society, that is, to avoid damaging properties or to save expenses incurred from separation of properties. Other objectives are to be consistent with general understanding of business transactions, and moreover, to insure transaction security. If a personal property is not considered an independent property but a part of a real property in transactions, the law should allow the incorporation of personalty into realty so as to meet the general understanding of business transactions. Once the law meets the said general understanding, transaction security can therefore be insured. When studying all related topics, this thesis emphasizes on connections with these objectives. The “important component part” in Article 811 of the Civil Code refers to a personal property being attached to a real property in such a way that they cannot be separated without damage or can only be separated by incurring excessive expenses, and the attachment is not for a temporary purpose, and the personal property is no longer an independent property under general understanding of the society. Base on the foregoing, three criteria of “secure attachment”, “continuous attachment” and “loss of independency” are used for determining the “important component part”. An unfinished architecture in a stage still could not qualify as a real property. Supreme Court decision number 116 in 1986, based on its being independent from a plot of land, deemed such unfinished architecture to be a personal property rather than having been incorporated to be an important component of the land. This thesis concurs with this Supreme Court decision. This thesis asserts that the provisions of the incorporation of personalty into realty are not applicable when a person attaches work on a real property, or plants bamboos or trees on land, in order to exercise his rights. In the case where one exercises his rights to cultivate crops on land, if the crops are ready for harvest within a period of a month, this thesis considers such crops as personal properties. This thesis concurs with amending Article 811 of the Civil Code by adding a proviso. A personal property being a collateral of a secured transaction, once incorporated as an important component part of a real property, the owners of the personal property and real property shall jointly own such composition in proportion to the value of each property at the time they were incorporated, and the share acquired by the owner of the personal property becomes the collateral of the secured transaction (Article 4-1 of the Act of Secured Transactions for Personal Property).