What brokers may and may not do

Case law sets the pace. This also applies to real estate transactions in which an estate agent is involved. What costs may be charged? What is prohibited in an estate agent contract? We answer these questions in the following article to help you reach a good deal.

Who is liable for false information in the exposé?

The client and the estate agent can be held liable for errors in the exposé. The seller may not provide false information to the estate agent. If the real estate professional talks up the property for sale to prospective buyers, they may be liable for damages because they have breached their duty to advise prospective buyers properly.

Can a reservation fee be charged?

A reservation fee may not be charged without a clear written contractual agreement and is also not legally permissible. If a reservation fee is included in the brokerage contract, this must be offset against the fee of the real estate professional after successful completion.

If the prospective buyer does not receive the property even with the reservation, the estate agent has been obliged to refund the fee paid since 2023. Paying for a reservation is no guarantee that the property will be purchased. In the end, the owner still decides who they want to sell to.

 How far can an exclusive order go?

 In 2020, the Federal Court of Justice ruled that brokers may only secure exclusive brokerage rights for a maximum of six months in sole agency agreements. Accordingly, the contract term may not be longer or even unlimited. The client may not sell their property through another estate agent within the agreed reasonable period. If the client does not terminate the contract in good time, the contract can be extended by a maximum of three months.

When must the commission or brokerage be paid?

The commission is only due once the change of ownership has been successfully completed. An estate agent may therefore not stipulate in the contract that his commission must also be paid if the sale fails. However, other costs may be charged.

Travel and postage costs, which the estate agent must prove, may be charged to the client. Excluded from this are the printing and postage costs incurred for the exposé. The costs for analyzing the sales price may also not be passed on to the customer.

If a property is sold successfully, a brokerage fee must be paid. The amount is not regulated by law. However, it is usually 7.14 percent of the purchase price. Both parties can share the costs to a maximum of half, provided they have been transferred. The brokerage fee should not be confused with the commission.

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Notes

For reasons of better readability, the generic masculine is used in this text. Female and other gender identities are explicitly included where this is necessary for the statement.

Legal notice: This article does not constitute tax or legal advice in individual cases. Please consult a lawyer and/or tax advisor to clarify the facts of your specific individual case.

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