Q: What specific information and documents are mandated when applying to register a "by-law common element" in a Japanese condominium?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

In Japan's framework for condominium (or "manshon"マンション) governance, certain parts of a building that could otherwise function as individually owned exclusive-use units (専有部分 - sen'yū bubun) can be designated as "by-law common elements" (規約共用部分 - kiyaku kyōyō bubun) through the condominium's bylaws (規約 - kiyaku). This designation allows for flexible use of space for communal purposes, such as an administrator's office, meeting rooms, or shared storage. However, for this designation to be legally binding and assertable against third parties, a formal registration process is indispensable, as stipulated by the Act on Unit Ownership of Buildings (建物の区分所有等に関する法律 - Condominium Ownership Act). This registration involves submitting specific application information and a set of crucial attached documents to the Legal Affairs Bureau (法務局 - Hōmukyoku). Understanding these mandates is vital for condominium management associations, developers, and unit owners.

This article details the key informational and documentary requirements for successfully registering a by-law common element in Japan, drawing upon procedural rules and legal interpretations that underpin this specialized area of real property registration.

Before examining the application details, it's crucial to recall why registering a by-law common element is so important. Article 4, Paragraph 2 of the Condominium Ownership Act states that while parts of a building that could be exclusive-use units (and attached buildings) can be made common elements by the bylaws, this status "may not be asserted against a third party without registration thereof."

Because these parts possess the physical characteristics of independent units, failing to register their common element status could lead to significant legal complications. For instance, a third party might attempt to purchase or place a lien on what they believe to be an exclusive unit, unaware of its designation as common property under the bylaws. Registration provides public notice (公示 - kōji), safeguarding the collective interest of the unit owners and ensuring the integrity of real estate transactions. The procedures for this are primarily outlined in the Real Property Registration Act (不動産登記法 - Fudōsan Tōki Hō) and its associated ordinances and regulations.

Core Application Information (申請情報 - Shinsei Jōhō): Defining the Scope

The application (申請 - shinsei) itself must contain precise information to clearly identify the subject of the registration and its intended purpose. Key elements include:

  1. Precise Identification of the Designated Part: The application must accurately describe the specific unit or building part that is being designated as a by-law common element. This includes its location within the building, its house number (家屋番号 - kaoku bangō) if it was previously registered as an exclusive unit, and its physical characteristics (e.g., type, structure, floor area).
  2. Identifying the Benefiting Exclusive-Use Parts or Buildings: A crucial aspect of the application is identifying which exclusive-use parts the by-law common element is intended to serve. The requirements differ slightly based on where these benefiting parts are registered:
    • If the common element serves exclusive-use parts in a different building (registered in a separate property record): The application must include details of that other building. This could be its location and house number if it's a non-condominium building, or if it's another condominium building, its location, structure, total floor area, or its registered name. This ensures that the legal link between the common element and the units it serves across different building structures is clearly established in the registry.
    • If the common element serves other exclusive-use parts within the same building (i.e., units registered in the same condominium building record as the part becoming common): In this scenario, the application does not require a listing of the individual owners of these benefiting exclusive-use parts. The rationale is that the common element's integration within the same building's framework implies its service to the units therein.
  3. The "Thing-to-Thing" Relationship Principle: Japanese legal commentary emphasizes that the registration of a by-law common element establishes a "thing-to-thing" (物に対する関係 - mono ni taisuru kankei) relationship rather than a "person-to-thing" relationship. This means the registration links the common element (a "thing") to the building(s) or exclusive-use parts (other "things") it serves. The focus is on the objective connection between the properties, not on the identities of the current individual owners who benefit from the common element. This principle underpins why the identification of the served buildings/units is paramount.

Essential Attached Information (添付情報 - Tempu Jōhō): The Documentary Backbone

Beyond the core application data, several critical documents must be attached to substantiate the application. These are detailed in various regulations, including the Appended Tables (令別表 - Rei Beppyō) of the Real Property Registration Ordinance. For by-law common elements, common requirements (as per sources like Appended Table 18 of the Ordinance) include:

A. Information Certifying the Bylaw Designating the Common Element (規約を設定したことを証する情報):
This is arguably the most fundamental piece of evidence. It proves that the unit owners have, through their collective decision-making process, agreed to designate the specific part as a common element. Acceptable forms typically include:
* The condominium bylaws (規約 - kiyaku) themselves, clearly showing the article that designates the part as a common element.
* Certified minutes of the unit owners' association general meeting (集会の議事録 - shūkai no gijiroku) where the bylaw was adopted or amended to include this designation. These minutes must show that the resolution was passed with the requisite majority (usually a special majority under Article 31 of the Condominium Ownership Act).
* In cases where the condominium was initially established by a developer who owned all units, a notarial deed (公正証書 - kōsei shōsho) by which the developer established these initial bylaws (as per Article 32 of the Condominium Ownership Act) would serve as proof.

B. Information Certifying the "Owner(s)" of the Part to be Designated (建物の所有者を証する情報):
This requirement (as described in 2:8:3:4 of the source, referencing rules like Article 87, Paragraph 2 of the Real Property Registration Rules (準則 - junsoku)) aims to identify the current stakeholder(s) of the building part that is about to become a common element. It's important to distinguish this from the more rigorous "information certifying the ownership right" (所有権証明情報 - shoyūken shōmei jōhō) needed for, say, an ownership transfer or initial preservation registration.
* Purpose: For registering a by-law common element, this information helps establish who holds the current interest that is being transformed into a common right. This could be the original developer if the designation happens before all units are sold, an individual unit owner if an existing exclusive-use unit is being converted, or the collective of unit owners if the part was already under some form of common control but not yet formally designated and registered as a by-law common element.
* Lesser Scrutiny than Full Ownership Proof: The level of proof required here is generally considered less stringent than what's needed to establish a new chain of title or prove marketable title for a sale. The logic is that the act of designating and registering the part as a common element effectively subsumes any prior individual ownership into the collective ownership structure of the condominium. The registration will lead to the deletion of any prior specific ownership title for that part.
* Acceptable Forms: This could include information certified by all or some of the relevant unit owners or building owners, as specified by ancillary rules.

C. Consent from Holders of Existing Registered Rights (登記名義人の承諾証明情報):
This is a critical requirement if the building part being designated as a by-law common element is already encumbered by registered rights other than ownership (添付口 - tempu kuchi). Examples include:
* Mortgages (抵当権 - teitōken)
* Registered leasehold rights (賃借権 - chinshakuken) if the part was, for instance, an independently leasable unit.
The registered holders of such pre-existing rights must provide formal, written consent to the designation.
* Rationale: Designating a part as a common element fundamentally changes its legal nature. It becomes inseparable from the exclusive-use units and can no longer serve as independent collateral or be subject to individual disposition. A mortgage previously secured only by that specific part would effectively lose its distinct security. The registration of the part as common property will, by operation of law (Real Property Registration Act, Art. 58(4)), lead to the deletion of such specific rights from the registry for that part. Therefore, the consent of these rights holders is necessary to acknowledge this change and the impact on their interests. Without their consent, the registration as a common element cannot proceed if their rights are registered.

D. Consent from Third Parties Holding Rights on the Above Rights (権利を目的とする第三者の承諾証明情報):
The consent requirement extends a layer deeper if any of the existing registered rights (like a mortgage) are themselves the subject of another registered right (添付ハ - tempu ha). For example:
* If a mortgage on the unit-to-be-common-element has been pledged (質権設定 - shichiken settei).
* If there's a sub-mortgage (転抵当 - tenteitō).
In such cases, consent from these "secondary" rights holders is also mandatory. Their indirect but registered interest in the property is also affected by its transformation into a common element.

E. Other General and Ancillary Documentation:
While the above are specific to by-law common element registration, general registration practices also apply. This might include:
* Power of Attorney (委任状 - ininjō): If the application is filed by a legal representative (e.g., a judicial scrivener - 司法書士 shihō shoshi).
* Corporate Registration Certificate (法人登記事項証明書 - hōjin tōki jikō shōmeisho): If the applicant or a consenting party is a corporation.
* Building Drawings (建物図面 - tatemono zumen) and Floor Plans (各階平面図 - kakukai heimenzu): These are always fundamental for accurately identifying the property and the specific part in question.

The distinction between "information certifying the owner" (所有者を証する情報) for the purpose of designating a by-law common element and "information certifying ownership right" (所有権証明情報) required for other registrations like property transfers or initial ownership preservation is significant.

  • "Information Certifying the Owner" (for by-law common element): This often focuses on identifying the current stakeholders who are making or affected by the decision to make a part common. The registry is concerned with confirming that the decision is legitimate from the perspective of those who currently have a recognized interest in the part. The subsequent registration as a common element transforms this interest into a shared one.
  • "Information Certifying Ownership Right" (for transfers, etc.): This requires a more rigorous demonstration of clear, marketable title that can be passed to another party or serve as the basis for a new independent ownership claim.

The registrar at the Legal Affairs Bureau will examine the application and attached documents for completeness, consistency, and compliance with all relevant laws and regulations. The process ensures that the transformation of a potentially private space into a shared asset is legally sound and clearly reflected in the public record.

It is also noted that the application documents for registering a standard "common element" (under Appended Table 18 of the Ordinance) and a "Danchi common element" (under Appended Table 19) can often be consolidated if they serve the unified purpose of registering a part as a (Danchi) common element, streamlining the process where applicable.

The detailed informational and documentary requirements for registering a by-law common element are not arbitrary. They serve several crucial functions:

  1. Verifying the Collective Will: The bylaw documentation confirms that the designation is a valid decision of the condominium's governing body.
  2. Protecting Existing Rights Holders: The consent requirements ensure that parties with pre-existing registered interests are aware of the change and agree to the alteration or extinguishment of their specific rights against that individual part. This prevents disputes and ensures that the common element is "unburdened" in its new status.
  3. Maintaining Registry Accuracy: Precise identification and documentation help maintain the accuracy and reliability of the Japanese real property registration system, which is foundational to secure property transactions.
  4. Providing Public Notice: The entire process culminates in a public record that clearly defines the status of the by-law common element, protecting both the unit owners' collective rights and bona fide third parties.

Failure to meet these requirements can lead to the rejection of the registration application or, if registration is mistakenly effected without proper consents, potential future legal challenges.

Conclusion

Registering a building part as a by-law common element in a Japanese condominium is a significant legal act that transforms its character from a potentially exclusive space to a shared community asset. The application process demands meticulous attention to detail, requiring specific information to identify the property and its intended service scope, and a comprehensive set of attached documents. Key among these are proof of the authorizing bylaw and, crucially, the formal consent of any parties holding existing registered rights over the part being designated. These stringent requirements are in place to ensure legal clarity, protect the rights of all stakeholders—including unit owners and existing encumbrance holders—and maintain the integrity of the public property register. For those involved in condominium development, management, or transactions in Japan, a thorough understanding of these mandated elements is essential for the valid establishment and secure enjoyment of by-law common elements.