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The Right of First Refusal of the Owner of the Building Site When the Superficiary or the Dian-Holder of the Site Sells His House and His Right Together: Focus on the Acknowledgement and the Object of the Right of First Refusal
The right of first refusal refers to effective utilization of the real estate and is an important issue in practice. However, the existing studies are insufficient. For example,according to Article 104 of the Land Act, the owner of the building site has a right of first refusal when the superficiary or the dian-holder of the site sells his house. However,according to the third paragraph of Article 838 and the second paragraph of Article 917 of the Civil Code, the superficiary or the dian-holder of the building site shall sell the superficies or dian at the same time when he sells his house. He cannot only sell his house.
In this situation, does the owner of the site still have the right of first refusal? If so, what is the object of the right of first refusal? There are controversies over the two questions.
First of all, this study analyzes the purposes and the issues we shall notice when the above provisions are applied as the foundation of this whole article. This study then explores the said questions.
This study emphasizes the interests of the concerned parties and promotes effective utilization of the real estate. This study discusses the existing doctrine and practice and makes some propositions in explanation. This study holds that when the superficiary or the dian-holder of the building site sells his house and his right together, the owner of the site still have the right of first refusal. When he exercises his right of first refusal, he shall buy the superficies or dian together.
Journal of Taiwan land research