In most cases, real estate agents are not allowed to charge prospective buyers a fee for reserving the property exclusively for them for a certain period of time. Such a clause in the general terms and conditions puts customers at an unreasonable disadvantage, the Federal Court of Justice (BGH) ruled on Thursday. For the Karlsruhe judges, it makes no difference whether the agreement was concluded directly in the brokerage contract or later separately. That was previously unclear. (Az. I ZR 113/22)

Of course, the broker is free to meet a potential buyer with a reservation confirmation – free of charge as a service. In addition, it is still possible to make an individual reservation for a fee in specific individual cases. But there has to be a good reason for that. In detail:

The case

The plaintiffs wanted to buy a specific single-family home, but the financing was not yet secured. The brokerage company promised to reserve the house exclusively for them for a month – for a fee of 4,200 euros.

That was one percent of the purchase price of 420,000 euros. When buying, the sum should be offset against the commission. But that never happened: the plaintiffs couldn’t raise the money to buy the house after all. In court, they wanted the agent to refund the fee.

The previous legal situation

In 2010, the BGH had already objected to a similar fee. The top civil judges saw this as an attempt to secure remuneration that was not dependent on success even if mediation efforts failed. At that time, the clause was directly in the pre-formulated contract terms, so the customer had to sign it or leave it alone.

In the present case there was a separate reservation agreement, which was even concluded more than a year after the brokerage contract. The district court of Dresden had therefore awarded the money to the broker. Because courts can only control provisions in general terms and conditions if they are a so-called ancillary agreement to the actual contract. That was questionable here.

The judgment

For the BGH judges, the reservation contract is only a supplement to the brokerage contract, despite the large time interval – and can therefore be checked. Otherwise, it would be easy to circumvent the ban on fees by setting up two separate contracts, said Senate Chairman Thomas Koch.

According to the judges, the broker benefits unilaterally from the clause. Koch said that the customers have an interest in nobody snatching the property from them – and pay a considerable amount for it. “But they don’t get that much out of it.” Because the owner can still back down or sell the property elsewhere on his own initiative.

The fee also creates a certain pressure to purchase the property. The broker, on the other hand, has no major disadvantages as a result of the reservation. The judges consider it unrealistic that he would have found another buyer for the property in such a short time. The plaintiffs therefore get back the 4200 euros.

The effects

According to the experiences of the German Real Estate Association (IVD), the reservation for a fee was not particularly widespread in the industry – also because of the uncertain legal situation. The BGH has now completely buried their formal agreement, said the IVD legal advisor and vice federal manager Christian Osthus. “Free agreements are of course always possible. That’s what distinguishes a good customer relationship.”

In the case of individual agreements, the content requirements are high. It must be made clear here that there is a give and take.

Osthus therefore assumes that the reservation for a fee will continue to play a role in the future, especially in the property development business. So if you buy into a larger new building project. It happens here that certain planning steps are postponed for a certain period of time – for example so that the potential buyer can still influence whether he prefers three large or four smaller rooms in his condominium. In this area, fee-based individual agreements are conceivable.