The scope of application of Sections 656a et seq. of the German Civil Code (BGB) and what the Federal Court of Justice (BGH) has decided regarding granny flats and office extensions.
The protective rules regarding the distribution of real estate agent fees do not apply to every property. The decisive factor is whether a consumer is purchasing an apartment or a single-family home. The Federal Court of Justice clarified on March 6, 2025, that a granny flat or a small office extension does not change this. Rogert & Ulbrich will check whether your purchase falls within the scope of these rules.
When the buyer-pays principle applies: an overview of the scope of application
First, a clarification of the term: The term "Bestellerprinzip" (buyer-pays principle) is also colloquially used to refer to the regulation in real estate purchases. Legally, it refers to the principle of equal division according to Sections 656c and 656d of the German Civil Code (BGB), according to which the buyer and seller bear equal shares of the real estate agent's commission. The actual "Bestellerprinzip" originates from tenancy law and states that whoever orders the service pays.
Whether these protective regulations apply depends on two conditions. Firstly, the transaction must involve the purchase of an apartment or a single-family home. Secondly, the buyer must be acting as a consumer according to § 656b of the German Civil Code (BGB), meaning they are not purchasing for commercial or self-employed purposes. If either of these conditions is not met, the commission remains freely negotiable.
Are you unsure whether your property purchase falls under the protection rules? Have the scope of application reviewed for your specific case.
Single-family house: the discernible commercial purpose is decisive.
The law does not define what constitutes a single-family home. The Federal Court of Justice closed this gap with its ruling of March 6, 2025. According to this ruling, a property qualifies as a single-family home within the meaning of Sections 656a et seq. of the German Civil Code (BGB) if, at the time of concluding the brokerage agreement, it is clear to the real estate agent that the property will be used for the residential purposes of the members of a single household.
Two points are noteworthy here. First, the buyer's intended use is what matters, not how the seller has previously used the property. Second, this residential purpose must be apparent to the real estate agent at the time the contract is concluded. This is usually evident from objective circumstances, such as the condition of the property and its description in the listing. If this is not the case, the buyer must clearly communicate the residential purpose to the real estate agent and, if necessary, demonstrate and prove it.
Are you unsure whether your property qualifies as a single-family home under the law? We will assess your case based on the documents provided.
Apartment and office extension: subordinate use is harmless
Often, a house is not exclusively used for living space. A separate apartment for parents, a small office, or a medical practice are common. The question then arises whether the protective regulations no longer apply. The Federal Court of Justice has ruled that they do not.
The court ruled that the assumption that a single-family home serves residential purposes is not contradicted by the fact that it contains a granny flat or other commercial use, each of which is only of minor importance. The case in question involved a single-family home with an extension comprising an office and garage, which comprised one-fifth of the total area and had its own entrance and house number. The court deemed the use to be subordinate, thus applying the protective regulations.
The Federal Court of Justice has explicitly not set a fixed percentage limit. Whether a use is subordinate depends on the circumstances of the individual case. The decisive factor remains that the residential purpose is paramount.
Does your house have a granny flat or a small commercial section? That doesn't preclude your claims; we'll check the classification.
Where the boundary lies: commercial property, apartment building, commercial buyer
However, there are clear limits. If a purchase does not fall within the scope of application, the commission remains freely negotiable and a claim for reimbursement based on the principle of equal division is excluded. For acquisitions in a commercial context, our Real estate law for companies the correct starting point. Typical locations outside the protected area are:
- Purely commercial properties: Objects that are not primarily used for residential purposes, such as shops, office buildings or halls.
- Apartment buildingsBuildings designed to house multiple independent households do not fall under the definition of a single-family home.
- Commercial buyersAnyone who buys for commercial or self-employed purposes, such as as an investor or company, is not a consumer according to § 656b BGB.
- Contracts concluded before December 23, 2020The rules do not apply to brokerage contracts concluded before the reform came into effect.
The distinction is often more difficult to make in individual cases than it seems. Have it checked on which side of the border your purchase falls.
If a third party commissions the broker
In the same ruling, the Federal Court of Justice clarified a practically important circumvention issue. According to its wording, Section 656c of the German Civil Code (BGB) only governs the case where the real estate agent concludes a brokerage agreement with each party to the purchase contract. What applies, then, if not the seller himself, but another person commissions the real estate agent?
In the case at hand, the brokerage agreement was concluded not by the seller, but by his wife. The Federal Court of Justice ruled that Section 656c of the German Civil Code (BGB) applies accordingly in such cases when a third party concludes the brokerage agreement instead of a party to the main contract. The buyer's protection is therefore not forfeited simply because the brokerage is arranged through a close relative.
In your case, the seller did not personally commission the real estate agent? This does not invalidate your claims; we will review the situation.
What buyers should check and do
Whether the scope of application is applicable is the first step in every examination. Only then does the question arise as to which recovery method is applicable, i.e., a violation of the principle of equal division, a right of withdrawal in distance selling, or a faulty button solution in online sales. As we discussed in the Claim for reimbursement of broker's commission For further instructions, please see our service page. These steps will help you get started:
- Classify objectIs it an apartment or a detached house, and what purpose did you have in mind when you acquired it?
- Demonstrate recognizabilitySecure the exposé, property description, emails and the brokerage agreement, from which the residential purpose can be derived.
- Evaluate secondary useA small office extension or an attached apartment is not a problem, as long as living is the main focus.
- Clients clarifyCheck who commissioned the real estate agent; commissioning by a third party may also be recorded.
- Have it legally reviewedA legal assessment clarifies whether the protective regulations apply and whether a refund is possible.
The better documented the intended use of the property, the clearer your case will be. Send us your documents and we will review your options.
Rogert & Ulbrich – Your lawyers in real estate law
Rogert & Ulbrich has been consistently representing consumers against excessive demands and invalid contract clauses for years. The law firm was founded by Dr. Marco Rogert and Tobias Ulbrich and has handled over 40,000 cases and filed more than 25,000 lawsuits. real estate law The focus is on protecting buyers, especially regarding real estate agent commissions and the distribution of agent costs.
We will examine whether your purchase falls within the scope of Sections 656a et seq. of the German Civil Code (BGB), classify your case according to the applicable review criteria, and enforce your claims for reimbursement, out of court against the broker and, if necessary, in court. You can conveniently retain our services online; we operate nationwide and, if you have legal expenses insurance, we will bill your insurer directly.
You've paid a real estate agent's commission and are wondering if the protection rules apply to your property? Get in touch and secure your rights.
