Myth or truth - what a broker can and may do (Part 1)

There are many reservations about estate agents and they often persist. They are usually about what an estate agent is (not) allowed to do and what they are capable of. But what is actually true about these myths? We clear them up.

Myth 1: Legal advice from the broker

Estate agents are not in a professional position to offer legal advice on sales and purchase contracts and are not allowed to do so. Only lawyers are allowed to do that.

This myth is partly true.

Only persons who are permitted to provide extrajudicial legal services may examine simple legal matters. A real estate agent does not have this permission. Unless he presents himself as an expert. This is clear from the ruling of the Federal Court of Justice (BGH I ZR 152/17) from 12.07.2018. According to this, there is an increased obligation to provide information and advice if the customer enters into a risky procedure or is persuaded to conclude an unfavorable and hasty contract because of this.

Myth 2: Brokers and technical damage assessment

As they are not experts on pollutants in the building or damage to the property, estate agents cannot provide a technical assessment.

This myth is true.

If owners wish to have their property inspected for damage and pollutants, an expert should be commissioned for this purpose. However, if the house or apartment is also to be sold, it is advisable to engage an estate agent in addition to the expert. Conversely, experts cannot market a property. However, if you are looking for a suitable expert, it is often very easy to find a regional expert through the estate agent's network.

Myth 3: Broker benefit clauses in purchase contracts

Broker claims for commission enforcement often appear in purchase contracts without permission and then have to be removed again at great expense.

This myth is not true.

Only if the buyer and seller unanimously wish to include a confirmation of the agreed commission in the contract will the corresponding clause be included in the contract. Otherwise, both parties only include the usual agreements for the contract in the legal document. However, there is one exception: the estate agent is entitled to a separate claim if a right of first refusal is imminent. In this case, the notary may only act in accordance with the will of the contracting parties.

Do you have questions about buying or selling a property? Or would you like some advice? Then please contact us. We will be happy to assist you.

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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