Priority Repayment Rights under Residential Leases: Requirements and Distribution Ranking
Based on 73 consultation cases · Updated · Translated from the Korean original.
A tenant under a residential lease who has taken possession of the dwelling, completed resident registration, and obtained a fixed date on the lease agreement has a right to receive repayment of the deposit ahead of junior-ranking right holders in a court auction or public sale. However, the actual distribution ranking and amount depend on factors such as when the right arose, whether senior-ranking rights exist, whether a demand for distribution was made, and whether the lease is valid.
At a glance
Key points
- The general right to priority repayment requires possession of the dwelling, resident registration, and a fixed date on the lease agreement (Housing Lease Protection Act, Articles 3 and 3-2 (주택임대차보호법 제3조, 제3조의2)).
- If the requirements for opposing the lease and the fixed date are both met on the same day, the right to priority repayment takes effect at 12:00 a.m. on the following day. A revolving mortgage established on the same day may rank ahead of the tenant (Examples 10 and 15).
- If the fixed date is later than a provisional attachment, the tenant cannot rank ahead of that provisional attachment creditor and will generally share the distribution pro rata with the senior-ranking provisional attachment creditor. The highest-priority repayment right of a small-amount tenant should be considered separately (Example 18).
- The tenant may exercise the right to priority repayment against the proceeds from the sale of the land when the leased dwelling and land are auctioned together or when only the land is auctioned. However, if a building is constructed after a mortgage is created on the land, a tenant of the newly constructed building may not receive priority repayment from the proceeds of the land sale (Examples 2, 23, and 24).
- A tenant with a right to oppose the lease may demand a distribution in the auction proceedings even before the lease term ends. A demand for distribution may be regarded as an expression of intent to terminate the lease, and the lease may terminate when notice of the demand reaches the landlord (Example 3).
- To exercise the right to priority repayment in auction proceedings, the tenant must take the necessary steps, including reporting their rights and demanding a distribution. The mere fact that the tenant did not receive notice of the auction does not replace a demand for distribution or, by itself, provide grounds to challenge the auction proceedings (Example 20).
- Rent arrears and other obligations arising from the lease may be deducted from the rental deposit. When determining the actual distribution, check both the deposit and any obligations to be deducted (Example 11).
- A person who acquires only the claim for return of the deposit, separate from the leasehold rights, cannot exercise the tenant’s right to priority repayment under the Housing Lease Protection Act (Example 25).
Frequently asked questions
Q. What requirements must I meet to have priority for repayment?
The tenant must take possession of the dwelling, complete resident registration, and obtain a fixed date on the lease agreement. A tenant who meets these requirements may receive repayment of the deposit ahead of junior-ranking right holders and other creditors in a court auction or public sale (Housing Lease Protection Act, Articles 3 and 3-2 (주택임대차보호법 제3조, 제3조의2)).
Q. Who has priority if I register my move-in and obtain a fixed date on the same day a revolving mortgage is established?
If the requirements for opposing the lease and the fixed date are both met on the same day, the right to priority repayment takes effect at 12:00 a.m. on the following day. Accordingly, it is difficult to conclude that the tenant has priority over a revolving mortgage established on the same day. If the revolving mortgage is established the following day, the tenant may have priority under the precedent discussed in the example.
Q. If I obtain a fixed date after a provisional attachment, will I receive no distribution at all for my deposit?
The tenant cannot receive a distribution ahead of a provisional attachment creditor, but may generally receive a pro rata distribution in proportion to the claim amount alongside a senior-ranking provisional attachment creditor. If the tenant qualifies as a small-amount tenant, the separate right to the highest-priority repayment of the deposit up to the applicable small-deposit limit should also be considered.
Q. If a dwelling is auctioned, can I receive repayment of my deposit from the proceeds of the land as well?
A tenant who meets the requirements for opposing the lease and has a fixed date, or a small-amount tenant, may receive priority repayment from the proceeds of the sale of the dwelling, including its land. This is possible both when the dwelling and land are auctioned together and when only the land is auctioned separately; as a general rule, an unregistered dwelling is not treated differently. However, there may be restrictions if the building was constructed after a mortgage was created on the land.
Q. Can I demand a distribution if an auction begins before my lease term ends?
A tenant with a right to oppose the lease may demand a distribution even before the lease term expires. A demand for distribution may be regarded as an expression of intent to terminate the lease, and the lease may terminate when notice of the demand for distribution reaches the landlord.
Q. Will I lose my right to priority repayment if I lose the lease agreement bearing the fixed date?
The right to priority repayment does not automatically expire merely because the lease agreement was lost. You should gather materials that can establish that a fixed date was obtained and verify the lease terms, then report your rights and demand a distribution. Even if you prepare a new agreement, you cannot obtain a fixed date retroactively for the past.
Q. If the auction court did not notify me that an auction was underway, do I still need to demand a distribution?
Even if you did not receive notice, you must take the necessary steps yourself, including demanding a distribution. The precedent discussed in the example held that where a tenant did not report their rights to the auction court and therefore did not become an interested party, the mere fact that they had not received notice did not make it easy to find the auction proceedings unlawful or to impose liability for damages.
Q. If I acquire a claim for return of the deposit, can I exercise the same right to priority repayment as the tenant?
A person who acquires only the claim for return of the deposit, separate from the tenant’s leasehold rights, cannot exercise the tenant’s right to priority repayment under the Housing Lease Protection Act. Whether that person meets the requirements to demand a distribution as an ordinary monetary creditor may be considered separately.
Q. Are rent arrears deducted from the amount distributed in an auction?
Unless there are special circumstances, rent arrears and other obligations arising from the lease may be deducted from the deposit as a matter of course. Therefore, even if the tenant has a right to priority repayment, the amount actually distributed may vary depending on whether rent arrears and other amounts are deducted.
Relevant laws
- Housing Lease Protection Act, Article 2 (주택임대차보호법 제2조)
- Housing Lease Protection Act, Article 3 (주택임대차보호법 제3조)
- Housing Lease Protection Act, Article 3-2 (주택임대차보호법 제3조의2)
- Housing Lease Protection Act, Article 3-3 (주택임대차보호법 제3조의3)
- Housing Lease Protection Act, Article 3-4 (주택임대차보호법 제3조의4)
- Housing Lease Protection Act, Article 4 (주택임대차보호법 제4조)
- Housing Lease Protection Act, Article 8 (주택임대차보호법 제8조)
- Housing Lease Protection Act, Article 8-2 (주택임대차보호법 제8조의2)
- Civil Act, Supplementary Provisions, Article 3 (민법 부칙 제3조)
- Civil Act, Article 359 (민법 제359조)
- Civil Act, Article 548 (민법 제548조)
- Civil Act, Article 621 (민법 제621조)
- Civil Execution Act, Article 41 (민사집행법 제41조)
- Civil Execution Act, Article 89 (민사집행법 제89조)
- Civil Execution Act, Article 90 (민사집행법 제90조)
Watch out for
- Obtaining only a fixed date or completing only move-in registration does not satisfy all the general requirements for the right to priority repayment. You must verify possession of the dwelling, resident registration, and the fixed date separately.
- The tenant must take responsibility for demanding a distribution in the auction proceedings. Do not delay necessary steps while waiting for notice of the auction or because you did not receive notice.
- A demand for distribution made before the lease expires may be interpreted as an expression of intent to terminate the lease. You should therefore check the effect of the demand and when notice reaches the landlord.
- The examples explain that the deposit limits for small-amount tenants and the amounts eligible for the highest-priority repayment vary by time and region. Do not apply an amount from a particular example to the current situation without checking.
Source cases
This guide was compiled by AI from the following Korea Legal Aid Corporation consultation cases (in Korean).
- 외국인이 한 외국인등록이나 체류지 변경신고에 주택임대차보호법상 대항력이 인정되는지
- 저당된 토지에 신축한 주택 임차인의 토지매각금에 대한 권리
- 임차주택의 경매 시 기간만료 전 임차인의 배당요구권
- 공증받은 임대차계약서로 우선변제권 인정되는지
- 주택임대차보호법상의 확정일자제도와 전세권설정등기의 차이점
- 확정일자 받은 주택임대차계약서를 분실한 경우 구제방법
- 주택임대차보호법상 임차인의 지위와 전세권자의 지위를 함께 가졌으나 나중에 임차인의 지위를 상실한 경우, 경매절차에서 우선배당 ...
- 상환이행판결을 받은 확정일자부 임차인이 경매신청하는 경우
- 배당받지 못한 후순위 임차인이 후행 경매에서 배당요구할 수 있는지
- 같은 날 대항력 및 확정일자를 받은 세입자와 근저당권자간의 순위
- 연체차임이 배당받을 보증금에서 공제되는지 여부
- 임차주택을 매수한 임차인이 배당금채권으로 매각대금과 상계 가능한지
- 저당된 토지에 재건축한 주택 임차인의 토지매각금에 대한 권리
- 계약서에 아파트의 동·호수 기재가 없는 경우 우선변제권 유무
- 전입신고와 확정일자를 갖춘 다음 날 설정된 저당권과의 우선순위
- 임차인이 임대인의 승낙을 받아 주택을 전대한 경우에도 우선변제권이 있는지
- 무단용도 변경된 건물 임차인의 우선변제권
- 대항요건은 갖추었으나 제3자의 가압류 후 확정일자를 받은 경우
- 임대인의 개인회생 면책과 임차인의 우선변제권
- 임차인이 경매절차 진행사실을 통지받지 못한 경우
- 분양계약 해제와 임차인
- 임차권한 없는 자로부터의 임대차
- 대지 소유자가 달라진 경우의 우선변제권
- 미등기주택 임차인의 우선변제권
- 임차보증금반환 채권을 양수한 채권양수인의 우선변제권 여부
This guide is general legal information about Korean law, not legal advice for your situation. For a specific case, consult a lawyer or the Korea Legal Aid Corporation (call 132 in Korea).