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Is it Legal to Rent a Clerk's Apartment? Common Area Revenues and the Tax Trap

Recently, rising costs and rising dues have led apartment managers to look for new sources. In many sites, fees are sought to be reduced by renting vacant Officer's apartments, shelters, roofs (for base stations) or exteriors (for billboards).

While it may seem like a sensible solution at first glance; improper decisions or rental income not reported to the Treasury can leave apartment management and apartment owners facing unexpected administrative and criminal sanctions.

So, can the common area of the apartment be rented? How should the decision be made and how to pay the tax on this income?

1. What is the Sufficiency Number of Decisions? (Majority or Unanimity?

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According to the Law on Condominium (Article 45 of the KMK), the leasing or use of the common areas of the building (Officer's apartment, roof, garden, shelter, etc.) to third parties is among the “important management works”.

Golden Rule (Unanimous): In order for a common area to be leased, it is essential that all floor owners vote unanimously.
decision to rent the official's apartment cannot be made by a plurality of votes in the general assembly (for example, with the approval of 15 of the 20 apartments). If even a single floor owner objects or does not sign, the lease is considered invalid by law and may be subject to an annulment lawsuit

Can the 2nd Officer's Apartment and Shelter Be Rented?

The rental requirement for each common area is not the same:

Clerk's Office: It can be rented if there is no official actually working in the building and there is a unanimous decision of the floor owners.
Shelters and Fire Stairs: In accordance with the Zoning and Fire Department regulations, shelters, fire escape corridors and safety areas cannot be rented in any way or used as warehouses. Even if a unanimous decision is taken, the leasing of these areas is against the law.

3. Who will pay the tax? (Real Estate Capital Wills)

The

biggest trap apartment managers fall into is forgetting to consider rental income “the apartment's own money” and forget to tax it. Legal apartment management does not have a separate legal entity or taxpayer.

Taxpayers are Floor Owners: Rental income from common space is considered personal rental income (GMSI) at the rate of land share of the floor owners.
Declaration Requirement: If an apartment owner's share of the apartment common space lease (along with other rental income) exceeds that year's tax exemption limit, the floor owner must add this to his or her Annual Income Tax Return.
Withholding Deduction: If the common area (e.g. the Clerk's apartment or shop) is leased to a company or taxpayer, the tenant is obliged to deduct 20% of the company rent payment and deposit it to the tax office.

How should the manager manage this process?

Get the Resolution Book: Record the “Unanimous Union” resolution with the wet signature of all floor owners at the general meeting held before renting.
Sign the Lease Agreement with Two Owners: On behalf of the “Apartment Management”, the manager authorized by the floor owners signs the agreement.
Keep Expenses Transparent: The income obtained must be credited to the official apartment bank account, the entrances and exits must be documented so that all residents can see.

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