Even though there is land category stipulated in cadastral record, the land to be acquired should be estimated based on actual state of land use. Therefore actual state report on land where state in cadastral record and actual state are different to ask Korea Cadastral Corporation to conduct a survey on actual state. The procedures below should be followed.
1. Check the actual state of land use and actual area of the land to be included in project district for each land lot and confirm the data with land category
and area written in cadastral record.
2. Judgement should be made whether the current land use is temporary or not as temporary use of the land is not considered upon survey on actual state of land use. In principle, land survey should be conducted by the land lot, but if continuous land lots are used for the same purpose, survey can be conducted simultaneously.
3. If the land category in cadastral record and actual use are different, relevant report should be written to check whether the local government applied for approval for the change of land shape and qualityand quality.
4. One should ask Korea Cadastral Corporation to conduct a survey on actual state based on the inquiry result in local government. In case of the survey on actual state, inspector should be actively involved in the survey by participating and explaining zoning criteria for each land use state and characteristics of compensation work fully.
5. If the outcome of the current state survey is submitted, final confirmation on land lot number and current area should be made.
<Table 3-2> Classification of Land Category under Cadastral Act
Land Category Land Category Land Category
Dry Paddy River School Site
Rice Paddy Bank Historical Site
Orchard Ditch Marsh
Pasture Grave Yard Water Reservoir
Forest Field Hot Spring Park
Land for Religious Use Salt Pond Sports Facilities
Road Building Site Recreation Area
Railway Factory Site Miscellaneous Area
Parking Lot Gas Station Site Warehouse Site
Fish Farm
(1) Site Survey on Unauthorized Building
Land on which unauthorized building is constructed refers to the land on which building supposed to be constructed after getting permission or reporting on the building is constructed without permission or reporting under applicable laws including Building Act(Article 24 of Enforcement Rule of the Land Compensation Act). Land Compensation Act recognizes the legality of unauthorized building as of Jan. 24 in 1989 and unauthorized building constructed after the date are excluded from compensation scope. The criteria applied to the calculation of building site is presented below.
A. Method to Check the Construction Timing of Unauthorized Building Construction date written in the register for unauthorized building is the basis to determine the construction timing of the unauthorized building. If there is no register for unauthorized building, following methods should be used.
1. Aerial map or photo recorded shortly before Jan. 24, 1989 : Securing the data by asking the data to National Geographic Information Institute and local government through official letter.
2. Fact that person has stayed in the building from the date before Jan. 24, 1989 with resident registration: Regardless of the current resident's stay from the date before Jan. 24, 1989 the basis for judgement if the first transfer date of the person in the building written in resident registration card.
3. Building included in taxation register : Check the information in taxation register.
4. In case where there is objective evidence that the building had existed before Jan. 24, 1989 : One should investigate and check document like electricity bill, telephone bill, water bill and utility bill receipt and picture of the building and ask relevant authority to inquire relevant information with attachment
of the list of land to be inquired through official letter, if necessary.
B. Criteria for the Calculation of the Site Area including the Land where Unauthorized Building is Located.
Criteria for the calculation of the site area including the land where unauthorized building is located are as follows.
1. The calculation is based on the land at a minimum which is necessary for the use and making profit from the unauthorized building and the land which cannot be separable from the purpose of the building.
2. Buildings attached to the unauthorized building are included.
3. Corridor, open-air storage, yard, greenhouse, tent, container, material storage and parking lot, which are not inseparable from unauthorized building are not included in the site as it is land for which illegal change of land shape and qualitywas made.
The calculation for the site area including unauthorized building should follow following methods based on the criteria mentioned above.
1. Building for residence : In principle, site area is calculated including the horizontal project area of the eaves belong to the unauthorized building.
Exceptionally, if the use of the land as the site for building is recognized objectively, that area is included. For example, the part which cannot be separable from the building for the purpose of residence like main building, attached building, small flower garden and yard surrounded by “ㄷ“ or
“ㄴ“ shape house is included in the site of unauthorized building.
2. Factory site : The horizontal project area of the eaves belong to the unauthorized building(including attached building) is calculated as site area and land category is determined as factory site. Attached buildings including
dormitory, cafeteria, office, and storage are determined as factory site not considering them as the facility for individual purpose.
3. Detached livestock shed, etc. : For buildings detached from house like livestock shed, the horizontal project area of eaves belong to livestock shed without permission is considered as site area and land category is selected as pasture
4. Other buildings : Judgement should be made in accordance with criteria mentioned above.
C. Other Considerations
Attention should be paid to the following matters.
1. In case of calculation of the site where unauthorized buildings constructed before Jan. 24, 1989, farmland preservation contribution(alternative forest resources formation fund) and the expense required for the change of land category should be reflected in valuation.
2. Even though the unauthorized building was constructed before Jan. 24, 1989 the building cannot be recognized as legal one in case of use change after Jan. 24, 1989. Therefore, valuation and compensation should be made considering the land use state at the timing of change. For example, if the use of land has been changed from greenhouse to building for residence to livestock shed to building for residence, decision should be made by inspecting and confirming comprehensive data including aerial photo, the timing of resident registration for the building and other data.
3. In case of using building permitted before Jan. 24, 1989 for other use, or if the use of land is changed after Jan. 24, 1989, valuation and compensation should be made based on the permitted land use . For example, if the purpose of the building has been changed from livestock shed to building
for residence, neighborhood shopping center to factory, decision should be made by inspecting and confirming comprehensive data including aerial photo, the timing of resident registration for the building and other data.
4. In case of using building permitted after Jan. 24, 1989, land category should be determined by investigating and confirming legality of land use change in accordance with Building Act. If the land use change is temporary or the change is illegal, valuation and compensation should be made based on permitted land use purpose.
5. If different land categories exist in one land lot, survey on the actual state should be conducted to reflect the state to valuation and preparation for expropriation adjudication should be made. However, if the different land categories in one land lot exist temporarily or extremely small part of the land is used for different use, land category can be determined based on major land use.
(2) Survey on the Land where Illegal Change of land shape and quality was Made
Land where illegal change of land shape and quality was made refers to the land, for which change of land shape and quality should be made after getting permission or reporting of the change under applicable laws including National Land Planning and Utilization Act, was changed without getting permission or reporting the change(Article 24 of Enforcement Rule of the Land Compensation Act). For the land for which change of land shape and quality was made illegally, valuation should be made based on the land use state at the timing of change, not on the actual land use state. Therefore legality of change of land shape and quality should be checked and judgement should be made according to individual law. If applicable law allows the change of land shape and quality
without the need for permission from relevant authority including mayor, compensation should be based on actual state of land use. Therefore on-site survey and fact confirmation are required. Major acts related to the change of land shape and quality include Farmland Act, Management of Mountainous Districts Act and National Land Planning and Utilization Act.
(3) Survey on Road Site
Road site includes the road for the passage of people, vehicles or passage only for people or vehicle and facility or structure that is combined with the road to make the road functional. The road subject to dispute on compensation for the loss under Land Compensation Act is private road under Private Road Act, de facto private road and other roads(Article 26 of the Enforcement Rule of Land Compensation Act).
A. Site of Private Road under Private Road Act (Evaluate the land at a fifth of the land price near the private road)
Private road under Private Road Act refers to the roads which are stipulated in Article 2.1.1 of Road Act or roads which are not governed by Road Act but connected to the roads governed by Road Act. Site of private road under Private Road Act refers to the land for which permission is given for the establishment of private road from the mayor or governor in accordance with Article 4 of Private Road Act.
B. Site of De Facto Private Road(Evaluate the land at a third of the land price near the private road)
It refers to roads other than private roads under Private Road Act(roads which have been in use as road after they were decided to be road under Urban
Management Plan of National Land Planning and Utilization Act are excluded).
(Article 26.2 of the Enforcement Rule of Land Compensation Act). Following roads are regarded as de facto private road.
1. Road installed by landowner at the timing of road opening by himself for his convenience.
2. Road to which access by others cannot be restricted at the will of the landowner
- Natural road (cadastral division+ passage of people) : If the natural road is divided in the form of road to use the road as road even though the land category is not road in record and many unspecified people come and go on the road, the natural road is regarded as de facto private road.
Natural road refers to the road naturally formed due to natural conditions like topography and geographical features for which administrative agencies including road management agency are not involved in the opening or formation of the road and landowner does not install.
- Road by custom : Road by custom where public transportation means(bus) come and go is recognized as de facto private road. The blocking of the traffic on the road comes under general obstruction of traffic crime.
- Other roads (no alternative road+ passage of people) : In other cases, only road where many unspecified people come and go and there is no alternative road is recognized as private road. For example, the road designated and announced by those with building license in accordance with Article 44 of Building Act falls under the category of other roads(Article 2.1.11.2 of Building Act). As person with permission manages the road in road management register, the information can be investigated and confirmed during basic survey and the information can be checked by asking local government(mayor of special city, mayor of metropolitan
cities, governor, or head of city, county and district) for inquiry with the attachment of the list of land to be inquired.
C. Site of Other Roads
Roads excluding private road under Private Road Act and de facto private road should be separated as the roads are estimated at normal price.
(4) Site of Ditch and Water Conveyance System(Article 26 of the Rule) The current land use state is applied to the site of ditch and the price is estimated within a third of estimated price of surrounding land. Site of water conveyance system is estimated at normal price except for the installation by landowner for his own convenience so it should be separated from the site of ditch.
For the judgement of the land whether it is the site of water conveyance system or not should be made by reviewing overall conditions focusing on fact to check the reasons for establishing water conveyance system, value transfer to nearby land, change of the purpose with the exercise of property right. If the site is managed by establishing artificial structure and the site is used to intake water for agriculture, the site should be regarded as the site of water conveyance system.
Upon survey on the site of ditch and water conveyance system, following matters should be noted.
1. If the place is written as ditch in cadastral record, or not used as ditch as of survey period or the purpose of the land is discarded, the survey should be conducted based on actual state.
2. Ditch should have facilities like waterway to make water flow and continuous water flow should exist. Therefore the land which is inundated or has water flow temporarily to acquire water is not regarded as ditch.
3. Information including executing company, owner, uncompensated lot of
the irrigation facility work should be investigated and confirmed during basic survey on the site of water conveyance system and confirm the information by asking the inquiry of the information to relevant organization(including Korea Rural Community Corporation) with the attachment of the list of land to be inquired through official letter.
(5) Site of River
Generally, river is divided into state river, local river and general river(small river and other river). The rivers to which River Act is applied are state river for which the name and section are designated by the Minister of Land, Infrastructure and Transport and local river for which the name and section are designated by mayor of Seoul, mayor of metropolitan city or governor.
Survey on the site of river is as follows.
1. For the land regarded as river in accordance with River Act or the land to be included in river zone as a result of work to make rivers straight, the land category at the timing of inclusion in river, actual use and area should be investigated if the compensation has not been made for the lot.
2. For the private land adjacent to river and for which the land category or actual use is river, one should inquire the information including the inclusion of the land in river zone or compensation history in River Authorities to check whether the lot falls under the category of uncompensated lot.
3. In principle, the private land naturally submerged, not rivers under applicable laws should be investigated assuming that the current state is river. However if it is judged that restoration to original state is possible considering the surrounding environment, the survey should be conducted based on previous state and valuation and compensation should be made based on previous state excluding the cost required for restoration to original state.
(6) Survey on Reclaimed Land
Reclaimed land refers to the forest field, river site and other area owned by state or local government for which improvement activities were conducted to increase the value of existing land by the change of land shape and quality, grading work, improvement of soil quality and soil, and installation of structure.
A. Compensation Requirement for Reclamation Cost(Article 27 of the Enforcement Rule of Land Compensation Act)
In case where permission and license are required for reclamation, reclamation should be conducted after getting applicable permission and license. The requirement for compensation is that those who reclaimed the land should occupy the land legally from the reclamation is made to the time when compensation is decided. Therefore if one does not occupy the land as of the date of inclusion of the land in project district due to the loss of occupancy after transferring the land to others or lack of economic feasibility, or if the land is subject to restoration to original state without compensation or permission given on the condition that there is no compensation in the future, the land is not subject to compensation for the reclamation.
B. Note
The land to which reclamation cost compensation is applicable should be state/public land and private land is not subject to compensation for the reclamation. The area under cultivation which exceeds the area that obtained permission for reclamation is not included in compensation scope. Even though land category was changed into dry paddy or rice paddy, the land can be compensated for reclamation if the land meets compensation criteria.
(7) Survey on Residual Land
Residual land refers to the remaining land held by the same landowner but not included in the public works. The application for acquisition of remaining land should be done before the completion of the public works. Therefore, it is needed to investigate whether the land is subject to remaining land and notify the landowner to prevent civil complaint related to late application for the acquisition.
Not all residual land can be compensated. Residual land is compensated as follows.
1. Compensation for acquisition if landowner asks purchase or acquisition because it is very hard to use the residual land for existing purpose(Article 74 of Land Compensation Act).
2. Compensation for price difference if the price of residual land decreases(Article 73 of Land Compensation Act, Article 32 of the Enforcement Decree of Land Compensation Act).
3. Compensation for the construction cost if works including the establishment of passage, ditch, and fence in residual land(Article 73 of Land Compensation Act).
A. Requirement for Residual Land
Compensation for acquisition(Article 74 of Land Compensation Act): If the part of the land is purchased through consultation or acquired so the residual land held by the same owner cannot be used for existing purpose, the landowner can ask purchase of the land to project operator or request acquisition to competent land expropriation committee. If the land meets the requirement mentioned in below items, the land is regarded as residual land but the location, figures, land use state, purpose of the land, and area of included land and residual land should
be considered(Article 39 of the Enforcement Decree).
1. If building cannot be established on the land or construction of the building is very difficult as the area of the land is too small to be building site or shape of the land is not appropriate for building construction.
2. If the agricultural activity is not possible as the shape of residual land is narrow or long or has not appropriate shape making access and revolving of the agricultural equipment difficult
3. If land use or cultivation is not possible due to transportation disruption as a result of project execution.
4. If it is recognized that it is very difficult to use the residual land for existing purpose.
Compensation for price difference (Article 73 of Land Compensation Act : If the part of the land is owned or used so the price of residual land decreases, compensation should be made to the landowner at the request of the landowner.
Provided that the landowner cannot claim compensation 1 year after the completion of the construction.
Compensation for the construction cost(Article 73 of Land Compensation Act) : If the residual land held by the same owner requires construction including the establishment of passage, ditch, and fence as a result of acquisition or use of the land partially, the compensation should be made at the request of landowner.
Provided that the landowner cannot claim compensation 1 year after the completion of the construction.
B. Note
One lot of land can have different constraints and land use state under public law like specific use area and there is a chance for the included land and residual