我國地上權住宅屆期後之爭議問題研究

本文藉由新加坡與中國大陸實施地上權經驗，探討國內以國有土地設定地上權之住宅屆期後可能產生的問題。國內地上權住宅屆期後以無償方式收回地上建物，如此將導致損害地上權人之建物所有權。另，地上權與建物兩者各具不同使用期限，如此可能導致雙方使用相互牽制，當地上權剩餘年限較短時將影響地上權人更新老舊建物意願，造成該建物荒廢及土地閒置等問題；而建物仍有少許使用年限時，若不加以利用則較為浪費資源。整體而言無償收回方式較易導致爭議發生，且於一定前提下應以建物與土地充分利用為目的。根據「張又升-建築物生命週期二氧化碳減量評估」調查近萬筆資料得知國內住宅建物平均拆除年限約23年，其與經濟耐用年限50年差距極大，其原因可能在於建物使用效益隨著年數增加而降低，都市普遍存在建物雖無安全疑慮但使用效益過低情形，而若不更新則會阻礙社會經濟進步。基於保護人民財產及契約權益對等前提，本文認為地上權屆期後建物移轉應採有償方式，並可透過不動產估價師評估制度評估地上建物狀態後，給予現金補償或延長地上權使用年限。而對於建物與土地的充分利用，當建物使用壽命屆滿已不堪使用時，地上權人若無意願更新建物，則可要求提前終止地上權關係，如此才不致使土地遭受閒置與老舊建物影響都市安全、景觀等情況發生，而提前終止地上權後國家應按比例退還剩餘地上權年限之權利金。當國家收回僅剩餘少許使用年限建物時，應可將其轉為社會住宅使用，以此方式可使建物得到充分利用，且亦能滿足中低收入民眾之租屋需求。綜上屆期後相關可能產生之問題，其原因來自法規制度上的不健全，若於法規制定上多方考量各種可能情形，則應能有效降低爭議發生。

關鍵字

使用權；地上權；無償

並列摘要

This paper analyzes the issues and disputes brought about by the expiration of residential superficies in Taiwan, using established superficies experiences from Singapore and China as a basis for a comparative study. In Taiwan, buildings on expired residential superficies are reclaimed by the government without payment, leading to loss of ownership of the buildings for the superficies owner. Furthermore, superficies and buildings have differing usage lifespans, which could lead to conflicting problems between the two. When a superficies’ lifespan moves closer to expiration, a superficies owner is less likely to consider updating old buildings, resulting in building deterioration and idle land issues. If a building lifespan is closer to expiration than the superficies and the building is not properly being utilized, it becomes a waste of a resource. Overall, reclamation without payment often causes disputes, therefore meaningful use of the buildings and lands should be of a priority. According to Yu-Sheng Chang’s “Life Cycle Assessment on the Reduction of Carbon Dioxide Emission of Buildings” study, the average age of a demolished building in Taiwan is approximately twenty-three years, which is drastically lower than the accepted economically effective lifespan of fifty years. Reasons for this may include the reduction in the cost-effectiveness of the building as it ages. While such existing buildings pose no safety issues or concerns for users, if left unrestored could potentially become obstacles for economic improvement. With the premise of preserving personal assets and contractual interests, this paper argues that reclamation of buildings upon superficies expiration should be done with payment to the owners, based on an appraisal of the building status using the real estate appraisal system, to determine whether payment is done by monetary means or through an extension of the superficies lifespan. As for the proper usage of buildings and lands, once a building reaches the end of its usage lifespan and the superficies owner choose against restoration, the superficies contract could be terminated early, so as to avoid idle land issues or building deterioration. This in turn could reduce potential problems brought about by unused aging buildings such as safety and aesthetic concerns. After early termination of superficies, the government should repay the owners royalties based upon a ratio established from remaining lifespan of the superficies being terminated. When the government reclaims buildings that are nearing the end of their useable lifespan, they could convert such buildings into public housing, which would not only make use of the building, but also provide residential housing for low to middle income households. The topics mentioned above represent examples of issues that may arise when superficies expire, with a flawed legal system acting as a contributing factor. If the legal system could take into consideration the many possible scenarios that exist in the case of expiring superficies, the number of disputes that may arise could be reduced.