When buyers have paid too much real estate agent commission when purchasing property, and what matters.
Since December 2020, real estate agents are no longer permitted to unilaterally pass on their commission to the buyer when selling an apartment or single-family home. The principle of equal division, as stipulated in Sections 656c and 656d of the German Civil Code (BGB), mandates that the buyer and seller share the commission equally. If this principle has been violated, you, as the buyer, can reclaim the commission you have paid. Rogert & Ulbrich will review your real estate agent contract and enforce any legitimate claims for reimbursement.
What does the principle of equal division state?
The principle of equal sharing governs who pays the real estate agent's commission (also called brokerage fee) when buying property. Since the law on the distribution of real estate agent costs, which came into force on December 23, 2020, the following applies: When brokering apartments and single-family homes, buyers and sellers must pay the commission in the same amount. This is regulated in Sections 656c and 656d of the German Civil Code (BGB).
The underlying principle is consumer protection. Before the reform, it was common practice in many regions for the seller to hire the real estate agent, but the buyer was then charged the entire commission. Anyone wanting to buy a house had little room for negotiation and had to pay the full commission. The legislature wanted to end this one-sided distribution of costs. Since then, real estate agents are no longer allowed to charge the buyer more than the seller.
Did you pay the full real estate agent's commission when you bought your house? Have it checked whether the principle of equal division was violated and whether you can reclaim part of it.
For whom does the principle of equal division apply?
The principle of equal division does not apply to every brokerage contract. Section 656b of the German Civil Code (BGB) defines its personal and material scope. Two conditions are crucial:
- The buyer is a consumerThe consumer protection regulations only apply if the buyer is acting as a consumer within the meaning of Section 13 of the German Civil Code (BGB), i.e., not for commercial or self-employed purposes. Commercial buyers and entrepreneurs are not covered by this protection.
- The object of purchase is an apartment or a single-family housePurely commercial properties and multi-family houses that are rented to many parties are excluded.
The Federal Court of Justice clarified the scope of application on March 6, 2025. According to this ruling, the principle of equal division also applies if a single-family home has a subordinate commercial use option, such as a small office or a garage as an extension. The decisive factor is that the property must be recognizably intended primarily for the residential use of a single household, as far as the real estate agent is concerned.
Unsure whether your purchase falls under the principle of equal division? A brief legal assessment provides clarity before the statute of limitations expires.
Dual role or unilateral commissioning: Sections 656c and 656d compared
The law distinguishes between two basic scenarios. Which rule applies depends on whether the real estate agent is acting for both parties or only for one.
- Dual employment (§ 656c BGB)The real estate agent acts for both buyer and seller and obtains a commission from both. In that case, they may only accept an equal commission from each party. If one party is exempt from paying a commission, this exemption automatically applies to the other.
- Unilateral commission (§ 656d BGB)Only one party, usually the seller, commissions the real estate agent. The other party's assumption of costs is only valid if the commissioning party pays at least the same share themselves. The buyer may therefore never pay more than the seller.
In both cases, the result is the same: the buyer must not be burdened more than the seller. Agreements that circumvent this are invalid.
Not sure which scenario applies to your situation? The brokerage agreement and commission agreement will provide the answer. We'll organize the documents for you.
When the real estate agent has demanded too much: typical violations
A violation of the principle of equal division is not always obvious. It is often hidden in the contract's structure. These scenarios occur particularly frequently in practice:
- The buyer pays more than the seller.The buyer pays the full commission, while the seller pays nothing or less.
- Hidden transfer via the purchase priceThe seller engages the real estate agent, but the purchase price is reduced in the sales contract, and the buyer then assumes the entire commission. The Federal Court of Justice has also ruled on such circumvention schemes.
- Commissioning by a third partyThe brokerage agreement is not concluded by the seller himself, but by a person close to him, such as his spouse. This does not negate the buyer's protection.
- Different commission ratesBuyer and seller each conclude a brokerage agreement, but agree on different commission rates.
If any of these scenarios sound familiar, it's worth carefully reviewing your contract. Even minor deviations can invalidate the entire commission agreement.
Consequences of a violation: invalidity and recovery of funds
If a commission agreement violates the principle of equal division, it is invalid. An important point to note is that there is no reduction to preserve its validity. This means the agreement is not simply reduced to the permissible half, but is entirely void.
This offers you, as the buyer, a significant advantage. You don't have to settle for a refund of the overpaid half. In the event of a breach of contract, the real estate agent's commission claim is completely forfeited, meaning the entire commission paid can be reclaimed. The legal basis for this is Section 812 of the German Civil Code (BGB), which addresses claims arising from unjust enrichment. The Federal Court of Justice (BGH) confirmed this right to full reimbursement in its ruling of March 6, 2025.
The classification of the specific violation determines the amount of your claim. Have your case reviewed before any potential claims expire.
What buyers should do now
The principle of equal division is just one of several ways to reclaim paid real estate agent commissions. Other options include revocation of distance selling contracts and the invalidity of faulty online order buttons. A systematic review will determine which approach is right for your specific situation. These steps will help:
- Collect documentsBrokerage agreement, commission agreement, notarized purchase agreement and proof of payment of the commission.
- Check text formBrokerage agreements for apartments and single-family homes require written form according to § 656a of the German Civil Code (BGB). If this requirement is not met, the agreement is invalid for this reason alone.
- Note the statute of limitations.Claims for reimbursement generally expire after three years. The period begins at the end of the year in which you made the payment and became aware of the circumstances.
- Have it legally reviewedA legal assessment clarifies whether a violation has occurred and how high the claim for reimbursement is.
The sooner you act, the more likely you are to meet deadlines. Send us your documents and we will review your options for claiming a refund.
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 firm was founded by Dr. Marco Rogert and Tobias Ulbrich and has handled over 40,000 cases and filed more than 25,000 lawsuits. In real estate law, the focus is on protecting buyers, particularly regarding real estate agent commissions and the allocation of agent fees.
We review your brokerage agreement, classify your case according to the applicable review criteria, and enforce your claims for reimbursement, both 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 bill your insurer directly.
Did you pay a real estate agent's commission when buying a property and suspect a violation of the principle of equal division? Get in touch and secure your claims.
