On December 23, 2020, the law on the distribution of brokerage costs for brokering sales contracts for apartments and single-family houses will come into force, which was passed by the German Bundestag on May 14, 2020. In the future, in the case of dual activity, the broker’s clients should pay a commission in the same amount. If the real estate agent only works for the seller, but the buyer is to participate in the commission, this participation is limited to a maximum of half of what was agreed with the seller. These two alternative regulations are intended to prevent the buyer, who is often the second client, from paying the commission alone if the real estate agent was first brought on board by the seller – with or without an order. This means that the real estate agent can no longer work for the seller free of commission. The broker is forced to negotiate a commission with the seller if the buyer is also to pay something.
As far as dual activity is concerned, the Bundestag has basically implemented what has been practiced in most federal states for decades, i.e. the broker acts as a fair mediator between the parties to the purchase agreement.
With the resolution of the Bundestag, the so-called bogus ordering principle, which would have resulted in a mandatory unilateral representation of interests, was rejected at the same time – for the time being.
Dual activity and commission – equal half-division principle (§ 656c BGB new version)
If the broker works for both of them in the future, he must also enter into a commission agreement with both of them. As a rule, a commission-based brokerage contract is first concluded between the broker and the seller, e.g. with a commission of 3.48 percent (as of 08/2020) including sales tax (VAT). The broker then offers the property to the public, whereupon an interested party reports. The broker also concludes a brokerage contract with the latter, i.e. also establishes a loyalty relationship with the interested party. The agreed commission is also 3.48 percent (as of 08/2020) including VAT. If the broker grants an interested party a commission discount of 0.5 percent, this would also work in favor of the seller. The principle should therefore apply: If the seller and buyer conclude a brokerage contract, both should pay the same in the event of success. Discounts work in favor of the other, which obviously means voluntarily granted discounts (§ 397 BGB). This does not include commission reductions, for example as a result of incorrect advice (impairment of performance), which is determined in a civil process. However, this should only apply if a judgment is made by the court. Price reductions due to a court settlement are to be seen as a voluntary discount.
The commission claims are due with the conclusion of the main contract.
scope of application
The personal area of application on the buyer side should extend solely to consumers. If a GbR appears on the buyer’s side, it is to be qualified as a consumer, but only if it wants to make the purchase for private purposes.
As far as the broker is concerned, in addition to the commercially active broker, the occasional broker is also included. The material scope of application should extend to apartments (singular) and single-family houses (singular), whereby a subordinate granny flat is irrelevant. Semi-detached houses are likely to be treated as single-family homes or condominiums. Purchase agreements for houses on a building plot also fall within the scope of application.
The question of whether the apartment or house should be rented out or used by the user does not matter.
Commercial real estate, apartment buildings or land ready for construction are not recorded.
Source IVD South 08/2020