Real estate: According to the BGH ruling, brokers are not allowed to collect a reservation fee
The Federal Court of Justice (BGH) sets limits on the fees charged by real estate agents. Fees for the reservation of purchase objects are ineffective because a repayment is impossible if no brokerage contract is concluded. Such a clause in the General Terms and Conditions (GTC) puts customers at an unreasonable disadvantage. In addition, the broker’s customers would not have any significant advantages from the reservation, according to the BGH.
If a broker and a prospective buyer agree to reserve a property, this is comparable to a brokerage contract for a commission. If the broker is not successful in brokering a property, then it is legally impossible to demand a commission. Realtors would have to reimburse the prospective buyer for the reservation fee because he did not buy the property.
What is the BGH case about?
A couple from Saxony wanted to buy a family home. During their search, they came across an interesting object. However, the agent who advertised the property charged a fee of around 14 percent of the agent’s commission to reserve the property for a month. The prospective buyers paid the fee. After the financing of the property purchase failed, they wanted the money back from the real estate agent. However, he refused to refund the amount.
What follows from the verdict?
After the BGH’s decision on clauses in the general terms and conditions, brokers cannot charge any fees that are independent of their success as real estate brokers. Prospective buyers should therefore not enter into such agreements. It remains the case that prospective buyers only owe the broker a commission if he has successfully brokered a property.
According to lawyer Marc Guericke from Koblenz, however, reservation fees can still be agreed in individual contracts. Only if the fees are in the terms and conditions or in pre-printed contracts, the regulation is ineffective.
The case that the BGH has negotiated is not the first to deal with disputed brokerage fees. Again and again, individual brokers and landlords try to enforce new fees. Most of the time they fail in court. Because the judges check whether the fee and consideration are in a fair relationship.
Orderer principle bypassed
New brokerage fees often arise in order to circumvent a changed legal situation. In 2015, the orderer principle was introduced for brokerage orders for rental apartments. After that, only the person who commissioned the broker paid a commission. After this change in the law, this was usually the seller of the property.
Also read: The best locations and the most attractive cities in the large WiWo real estate atlas
In order to be able to collect money from prospective tenants, a Stuttgart real estate agent charged 35 euros for group viewings and 50 euros for individual viewings. The tenant association warned the broker because of the fees. The Stuttgart regional court also considered the business model of charging money for viewings to be inadmissible.
Originally, the orderer principle was also to be introduced for the private purchase of houses and apartments. This plan was abandoned with a legislative reform at the end of 2020. Instead, buyers and sellers usually split the brokerage commission. According to the law, the client of the broker pays at least half of the commission. In commercial real estate deals, buyers and sellers are free to negotiate the distribution of brokerage commissions.
No money just for sightseeing
Brokers are only entitled to a commission if two conditions are met: The interested party must have concluded a contract with the broker. In addition, the broker must have been actively involved in the purchase contract for the property. If these conditions are not met, there is no claim for payment.
The Koblenz Higher Regional Court ruled on such a case. A couple became aware of a property via the seller’s website. The owner referred interested parties to a broker who organized several viewing appointments. He had commissioned the real estate agent to look for potential buyers for his house.
Home inspection tips
Anyone viewing a property should definitely do so in broad daylight. Then not only defects can be detected better, but also the overall lighting conditions can be assessed. If you want to know whether traffic noise or trades in the vicinity are annoying, you should visit on weekdays – before or after lunchtime.
A thorough property inspection takes time – and sellers and prospective buyers should take that too. Let each room work its magic on you, pay attention to details such as radiators, windows, doors and fittings. Let us show you everything in peace and then take a second tour. Then you will surely have open questions and you will get a more lasting impression.
It is also advisable to take a companion with you on a first visit. The four-eyes-principle makes every viewing appointment twice as productive, because everyone pays attention to different things. The risk of overlooking something essential is significantly lower.
If there are two people viewing a property, one person should definitely take photos of all the rooms and the outside. They help to reflect on what you have seen later and to clarify any details.
Make sure that they check your ideas and wishes on the property. A list of the most important criteria that the house should meet and a list of the most important questions that need to be clarified with the seller will help. Such lists simplify the viewing appointment considerably.
After the visit, ask for a building plan or a floor plan drawing together with a calculation of the living space, or make a photocopy of it. A digital photo of it will also do if necessary. Then you can calmly consider whether the room layout meets your requirements and whether the desired furniture would also find its place.
In the case of used properties in particular, you should examine the walls, windows, doors, roof structure and basement as closely as possible. If rot or moisture has made its way somewhere, renovation work can quickly become expensive. Watch out for possible mold growth in the corners of the room or behind furniture, also try out windows, shutters and doors. Also take a close look at the building services: How old is the boiler? What condition are the power and water lines in?
Anyone who sells a property must submit an energy performance certificate. A lot of real estate listings say it’s a work in progress. However, buyers should not do without it voluntarily, but rather insist on it. Only then does he get a comparative value for the energy hunger of a property, especially as far as the costly heating requirements are concerned. But beware: There are two variants, the requirement and the consumption card. The latter only provides information on how much energy the previous residents used on average over three years – and that depends on their individual heating behavior. The requirement certificate is only based on the building fabric and average weather and is more objective.
If the property is seriously considered after the first inspection, it is worth arranging another appointment with a building surveyor. This surveyor should be able to identify significant defects that are difficult to detect for the layperson and to estimate the necessary rehabilitation or defect removal costs. You can find suitable architects or civil engineers at Dekra (dekra.de), the Association of Private Builders (vpb.de), or the Federal Association of Freelance Experts (bvfs.de).
A property viewing should always include a walk through the neighborhood. In this way, you will be able to see how good the infrastructure is in the immediate vicinity, whether there is a source of noise that is disturbing you, and estimate the distances to shops, schools, or bus and train stops. Last but not least, the atmosphere in a residential area also plays an important role.
After the couple bought the property, the agent took his commission from the seller. However, he refused. The broker then went to court – without success. The conclusion of the purchase contract came about without the broker’s involvement, the court determined. Apart from the viewing appointments, the broker could not prove any further commitment. He therefore has no right to commission.
Contract fee for rental agreement is not permitted
Landlords also sometimes demand controversial fees from prospective tenants, for example for the conclusion of a rental contract. Especially in tight housing markets, prospective tenants are willing to pay such fees. They fear that otherwise they will not have a chance of finding an affordable apartment. However, the landlords are treading on very thin legal ice with such fees.
“Courts often put a stop to this practice,” says attorney Matthias Kentner. Accordingly, the judges generally considered an agreement on processing fees in form rental contracts to be inadmissible. Such clauses are invalid because they violate the law of the general terms and conditions (GTC). Most residential leases met the formal requirements for general terms and conditions. Accordingly, processing fees are inadmissible.
Also read: These graphics show why hardly anyone can afford a property anymore
