A brokerage contract is to be regarded as a private law contract between a client (owner / seller of a property) and a broker is closed. The broker is characterized commissioned to find suitable tenants / buyers within the meaning of the landlord / seller; He succeeds in this quest, he receives his broker’s commission. This is in accordance with § 652 BGB para. 1 regulated. Did he not show any success, he receives a cent, not even for expenses incurred as listings, property visits, etc., unless it has been explicitly agreed upon in advance between the two parties (§ 652 para. 2 BGB).
A broker agreement can informally and need not be necessarily concluded in written form: it can be agreed as orally and through conclusive behavior (= implied action). The request of a client to arrange an appointment may be viewed as implied action example already, from the entitlement to the commission arises [LG Coburg, 21 O 115/00]. However, it is always advisable to set up a brokerage contract in writing, to possess as evidence of this document.
But a brokerage contract must stipulate clearly that upon successful completion of a commission fee is due [BGH, 16.11.2006, III ZR 57/06]. A simple clause in the terms and conditions or a note in the exposé is not enough to justify the payment of a commission [AG München, 27.10.2011, 222 C 5991/11].
Die Höhe der anfallenden Maklerprovision muss hingegen nicht explizit im Maklervertrag angegeben werden: fehlt eine derartige Angabe, gilt gemäß § 653 Abs. 2 BGB die ortsübliche Courtage.
In exceptional cases, however, there is an obligation to a notarization of a broker agreement: pursuant to § 311 b BGB arises this, if the acquisition or the sale of a property is part of the contract.
Types of brokerage contracts
The usual in Germany brokerage contracts are divided into three different types:
Qualified Single contract
One brokerage commission
A single contract will always agreed on a specific term. Where an authority (seller / landlord of a property) a sole agency, so he dispensed with the commissioning of additional broker, but may nevertheless to take care of the sale or rental of its property. Is he so successfully, the commission claim the agent is eliminated. he Commissioned however another broker with mediation and manages this a successful conclusion of the contract, the customer the agreed commission to the debtor by contract alone broker must still pay. The real estate broker in turn committed by this single contract to act.
The qualified sole agent, however, is a contract which is concluded individually between the two parties. It contains agreements based, no generally accepted standard, such as the terms and conditions, but are desired by both parties. In a qualified sole agent can for instance be noted that the principal as the property may not sell / rent, but this should happen only through the mediation of the broker. Especially in this kind of a broker agreement is a written form wise.
The simple brokerage commission is when no other arrangements have been agreed between the parties. According to this Contract, the broker is not obliged to act. Generally it should this but do better, because with a simple brokerage commission it receives only after a successful placement his commission.
For all types of broker agreements, the broker is required to notify his client all circumstances known to him. However, he does not have the information that was made to him by the client with respect to the property, on the correctness check [OLG Frankfurt am Main, 12.12.2003, 24 U 5/02]. Are his other hand came is any doubt or he knows that this information is wrong, he is obliged to inform the interested parties about [BGH, 31.01.2003, V ZR 389/01].
Is the broker false information to any other interested people or created a not truthful exposé, he must for this information liable [BGH, 28.09.2000, III ZR 43/99].
Term of broker agreements
Frequently in broker contracts a certain period is agreed in the contract is effective. Expiry of the period, the customer always has the right to terminate this Agreement with one month’s notice. If, during this period to a successful conclusion, so the broker has a commission claim, even if the termination has been part of the client already pronounced.
When applicable, the right to a commission?
If it – no matter how much the broker has sought – does not come to a successful placement of the property, the agent not entitled to a commission has (§ 652 para 1 BGB.).
There are also no claims to a commission if the broker owner, tenant, landlord or manager is an object. This is true even if he has instructed his assistants to the management of an object [BGH, 02.10.2003, III ZR 5/03]. The basis for this regulation § 2 para. 2 sentence 1 no. 2 Alt. 2 WoVermittG, in accordance with this the homes provider entitlement to commission even loses, if not he himself, but his assistant managed mediated apartment.
In an economic or legal ties between brokers and landlords also no claims to a broker’s commission [LG Nürnberg-Fürth, 29.11.1995, 11 S 3675/95]. Even through a narrow kinship (close relationship) between estate owners will forfeit claims commission.
Different jurisdictions exist hung in the event that the administrator acts as broker who does not care about individual apartments, but only to the joint ownership of a condominium [see. LG Mainz, 28.01.2000, 3 S 105/99 and LG Hagen, 26.02.1998, 10 S 409/97].
If the actual activity of the agent provided on its behalf by the previous tenant of the property concerned, so the broker shall not be entitled to a commission [Munich Regional Court I, 15.09.2005, 31 S 4814/05].
There is a general assumption that the object in question at the time of placement actually has available for rent / for sale [AG München, 21.10.2009, 233 C 17880/09].