LexisNexis

Taiwan real estate inheritance case study

Wednesday 22 June 2022

Joshua Tai

Tai & LiangTaipei

lawyer@cdlaw.com.tw

Introduction

Mr Wang has died at the age of 80 without providing a will for two heirs: Andy Wang and Cathy Wang. Mr Wang’s inheritance was an apartment (or flat) located in the Da-An District of Taipei which is worth more than $715,000. Andy currently lives in the apartment with his wife and children while Cathy does not live there. Following Mr Wang’s funeral, Andy told Cathy: ‘I was Mr Wang’s only male successor.’ Not only did Cathy have no right to inherit Mr Wang’s apartment, but Cathy could not enter it.

Andy’s ideas were that traditionally males were ‘superior’ while females were ‘inferior’ because males made up the main workforce when Taiwan was an agricultural society. Cathy thought Andy was senseless because how come in modern day Taiwan there was such a ridiculous idea that only males had the right to inherit real estate. What can Cathy do to claim her rights to the inheritance of Mr Wang?

Analysis

The price of real estate is too expensive for most citizens in Taiwan, especially in Taipei. Real estate is frequently one of the major issues in family matters of allocating inheritance.

In Cathy’s case, she had difficulties communicating with Andy because he thought a female successor had no rights to inherit real estate. Some people in Taiwan have the wrong perception that only male successors can inherit real estate, yet this is not the case. Both male and female successors have absolutely equal rights to family inheritance if no will has been left by the deceased. Since Cathy could not negotiate with Andy about how to allocate Mr Wang’s inheritance, Cathy had the right to file a suit against Andy in the Taipei District Court and request the following civil claims.

Cathy can access the apartment and Andy needs to pay Cathy’s rents while he occupies the apartment

Both Andy and Cathy are Mr Wang’s successors and have concurrent ownership of the apartment. Cathy can claim she has free access to the apartment and Andy cannot bar her from it.[1] Following the Court’s decision, if Andy continues to bar Cathy from the apartment, Cathy can forcibly enter accompanied by the police, a locksmith and the Court’s staff. Cathy can also claim that Andy should pay her rent during his occupation of the apartment, although it can be lower than the market rate.

Cathy can claim Mr Wang’s inheritance must be allocated

There are mainly two ways of allocating real estate inheritance in Taiwan. The first is to allocate real estate to certain successors while reimbursing other successors. The second one is to forcibly sell the real estate and distribute the proceeds equally to each successor.[2]

The court needs to consider the following factors when it comes to allocating real estate property: the status quo, interests of concurrent owners, and the appropriate use of the real estate.[3]

In Cathy’s case, she can either claim the apartment to be allocated solely to her and reimburse Andy, or the apartment should be forcibly sold and the proceeds distributed equally. The court’s decision is not constrained by Cathy’s claims if the judge thinks it is more appropriate. For example, if Cathy wants the apartment to be allocated to her solely, yet the court can decide to sell the apartment and distribute the proceeds equally to each successor.

Conclusion

Although Cathy has the right to claim she can freely access the apartment and allocate it, she would face Andy’s unfair advantages during the trial. The rents she can claim from Andy are usually lower than the real price because their calculation is based on the declared land value.[4] Declared land value is usually lower than the market price. If Cathy wants sole ownership of the apartment, the court needs to consider the fact that Andy is currently living there. If Cathy has sole ownership, Andy would need to move out, which would not comply with the status quo.

Life is never fair, and trials are no exception. That’s why lawyers fight in court.

 

Notes

[1] Art 767 of the Taiwan Civil Code.

[2] Art 824 of the Taiwan Civil Code.

[3] No 815 of the Supreme Court’s Judgment, 2012.

[4] Art 97 of the Taiwan Land Act.