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The Bestellerprinzip (Whoever commissions somebody must also pay)

The Bestellerprinzip (Whoever commissions somebody must also pay)

The amendment to § 2 of the German Housing Agency Laws (WoVermittG) was introduced on June 1, 2015. The following basic principle that now applies is that the person who hires the realtor must also pay the realtor’s commission. This law applies only to brokering rental contracts for apartments. The brokering of plots of land or condominiums still falls under the old regime – that is, the buyer will as a rule pay the realtor, or a cost-sharing agreement will be made.

Previously, case law stipulated that the lessee had to pay the realtor if the lessee had allowed himself to be shown an apartment, had let the realtor mediate the sale, and had been previously informed of the realtor’s commission. Whether the lessee or the lessor had retained the realtor was irrelevant. Furthermore, verbal brokerage contracts were the norm.

Now, however, when a lessor hires a realtor, the lessee need not pay a commission. This is true even if the lessee agrees to pay the so-called finder’s fee. In this case, all the same, the lessor is the one who must pay. With this law the legislature seeks to prevent realtors from evading their obligation. Violators will be levied a stiff fine of up to 25,000 EUR.

The only exception the law permits is if the person hunting for an apartment has expressly authorized the realtor to find one.

Realtors and lessors will now be looking for a loophole, but if the realtor has been commissioned by the lessor, there won’t be one. To compensate for the realtor’s commission fee, the lessor will try to ask for higher fees for fixtures, such as a built-in kitchen. Even here there are limits.

If the realtor still asks for a commission or a signing bonus, or if a corresponding provision is included in the lease for “repaying an investment”, the law renders such an agreement – which would oblige the person searching for an apartment to pay a fee actually owed by the lessor or a third party – invalid.

If it is important to document such transactions, the person searching for an apartment may, however, out of necessity, initially pay a finder’s fee or pay it secretly. He must then must note that the statute of limitations for recovering such payments is three years. The lessor will as a rule try to shift the topic of the finder’s fee onto the realtor. The usual practice in larger cities, under which the apartment is shown in a collective viewing and the apartment-hunter helplessly signs anything put before him or her, will no longer be possible.

By Jörg Gardemann

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