Status: 04/20/2023 10:57 a.m
Anyone who has found their supposed dream house sometimes agrees a reservation fee for the property with realtors. If the purchase then fails, the broker must pay back the fee, the Federal Court of Justice ruled.
Brokers are not allowed to collect a reservation fee from prospective buyers, which the customer does not get back if the purchase does not go through. Such a clause puts customers at an unreasonable disadvantage and is therefore ineffective, as the Federal Court of Justice (BGH) ruled. This also applies if the reservation for money is not in the original brokerage contract, but was later agreed separately. The Karlsruhe judges thus supplemented an earlier judgment.
Customers reclaimed fee
It was about a case from Saxony: in 2019, the interested parties had concluded a brokerage contract with the office. When they found their dream home a year later, they entered into another agreement to reserve the property. It stated that the estate agent’s office reserved the house for interested parties for a month and was not to show it to other buyers. For this it demanded a fee of 14.37 percent of the agreed brokerage commission or one percent of the purchase price, which corresponded to 4200 euros. If you make a later purchase, the money should be credited towards the commission. If, on the other hand, no purchase contract is concluded, the fee should not be refunded.
In fact, the interested parties could not find a bank that financed their purchase. That’s why they couldn’t buy the house after all. They demanded the reservation fee back from the real estate agency. Since they did not get this, they went to court in Dresden. District court and district court ruled against them, after which they turned to the BGH.
Money must be paid back
The BGH now overturned the decision of the lower courts and obliged the brokerage office to repay the money. The court did not classify the reservation agreement as an independent new contract, but as a supplementary regulation to the brokerage contract. That’s the only reason he was able to check them out. The presiding judge Thomas Koch pointed out at the verdict that the prospective buyers had a certain interest in reserving the property. However, such an agreement with the broker does not affect the rights of the property owner. He could still decide to sell to someone else – or not to sell at all.
In 2010, the BGH had already decided on a reservation fee and declared the corresponding agreement to be invalid. At that time, the clause was directly in the brokerage contract.
Az: I ZR 113/22