Exclusive use of common parts for a fee

It often happens that the meeting grants a single owner exclusive use of a common part, a parking space in the courtyard, a portion of roof, a storage room, in exchange for a periodic fee. The operation is lawful but must be framed carefully, because it is not the same as selling the good and has precise limits. The fee collected is common income belonging to all the owners in proportion to their thousandths (millesimi). Let us look at the legal nature, the limits and the accounting and tax handling.

More intensive use or exclusive use: the frame of Article 1102

Article 1102 of the Italian Civil Code allows each participant to use the common good, provided they do not alter its purpose and do not prevent the others from also using it. Granting a single owner exclusive and continuous use of a common portion is a different thing: it removes that portion from the enjoyment of the others. For this reason a concession for a fee must be resolved by the meeting and cannot amount to a permanent deprivation of the other owners' right over the good, which remains common. The distinction between more intensive use, which is allowed, and a stable removal, which requires the consent of the entitled parties, is the key to the framing.

It is neither a sale nor a real right

Granting exclusive use for a fee does not transfer ownership of the common good nor, as a rule, create a real right in favour of the owner. It is a contractual relationship, revocable as agreed, that leaves the good in the co-ownership of all. This distinguishes it from the attribution of a perpetual exclusive-use right, a figure debated and subject to strict limits in case law. To avoid disputes, the meeting act must clearly state duration, revocability, the fee and the beneficiary's obligations, avoiding wording that suggests a real right that cannot be created with a mere resolution.

The majorities required

The majority depends on how much the concession affects common enjoyment. If the exclusive use is temporary, does not alter the purpose and does not stably deprive the others, a majority resolution as an act of management may suffice. If instead the concession significantly and lastingly removes the good from the other owners, their consent is needed, up to unanimity in cases affecting individual rights over the common good. In practice, the more the concession resembles a stable deprivation, the higher the required majority, so as not to expose the resolution to challenge or nullity.

The fee is common income

The fee the owner pays for exclusive use belongs to all the co-owners in proportion to their thousandths, under Article 1123 of the Italian Civil Code. It must be collected in the condominium bank account, recorded in the accounts and represented in the report. As with other income, the meeting can decide to credit it pro rata or to use it to reduce common expenses. A delicate point is that the beneficiary owner pays the fee and, at the same time, collects their share of the income as a co-owner: the balance must be calculated transparently.

• meeting resolution with the majority appropriate to the impact of the concession
• written act with duration, revocability, the fee and the beneficiary's obligations
• collection of the fee in the condominium bank account
• pro rata split of the income among all owners, beneficiary included
• transparent representation in the report and the explanatory note

The tax treatment of the fee

The fee for granting exclusive use of a common part, when it does not amount to leasing a registered building, tends to fall among miscellaneous income deriving from an obligation to permit. Each owner declares their share in the miscellaneous income line. If instead the exclusive use concerns a registered common property granted for enjoyment, it may fall under building income. The classification depends on the specific case and should be assessed with a professional, ensuring consistency between the accounts and the tax statements given to owners.

Beware of de facto conduct

A frequent risk is that an owner in fact occupies a common part, for example a stretch of courtyard or roof, without any resolution or fee. In these cases it is not agreed exclusive use but occupation, which the other owners can challenge and the administrator has a duty to stop, possibly seeking an indemnity for the period of undue enjoyment. Formalising the use with a resolution and a fee protects both the condominium and the beneficiary, turning an ambiguous situation into a regulated relationship and traced income.

Regulating exclusive use of a common part means keeping together the resolution, the contract, the fee collection and the income split, including the peculiar balance calculation for the beneficiary. AmministraPro records the relationship, reconciles the fee and automatically splits the income on thousandths, showing each owner's net position. The features are on /funzioni and the plans on /prezzi.