What buyers should know about real estate agent commissions after the Federal Court of Justice ruling of July 16, 2026
You buy a house, the real estate agent also worked for the seller, and yet they demand the full commission from you. Since 2020, the principle of equal division of commission has protected buyers of apartments and single-family homes from precisely this situation. The Federal Court of Justice clarified on July 16, 2026, when this protection does not apply. The decisive factors are the actual condition of the property and the point in time at which you disclose your intention to live there.
Principle of equal division according to § 656c BGB: When buyers only pay half the broker's commission
Before the reform of real estate agent law, it was common practice for the agent to be commissioned by both parties, but for the buyer alone to pay the commission. The legislature ended this practice in 2020. Since then, the following applies: If a real estate agent obtains a commission from both parties to the purchase agreement for the sale of an apartment or a single-family home, the seller and buyer may only commit to an equal amount. This is the principle of equal division, regulated in Section 656c Paragraph 1 Sentence 1 of the German Civil Code (BGB).
The penalty is severe. If the agreement deviates from this requirement, the brokerage contract is invalid according to Section 656c Paragraph 2 Sentence 1 of the German Civil Code (BGB). The broker then loses their entire commission claim, from both parties. A buyer who has already paid can generally reclaim the commission. With a purchase price of €600,000 and a commission of 3.57 percent, this quickly amounts to more than €21,000.
However, this protection does not apply to every property. Section 656c of the German Civil Code (BGB) covers only apartments and single-family homes, and even then, only if the buyer is a consumer. Those who purchase commercial property, an apartment building, or land without residential buildings cannot invoke the principle of equal division. In practice, this distinction determines sums of money worth five figures.
If you have received a commission invoice and are unsure whether the brokerage agreement is even valid, have the agreement reviewed before you pay. Claim for reimbursement of broker's commission is significantly more complex than a prior check.
Federal Court of Justice ruling of July 16, 2026 (I ZR 111/25): A rented two-family house is not a single-family house
The decision was based on a typical case. A real estate agent brokered the sale of a property with a house on it to a buyer. The property was advertised as a rented two-family house. It consisted of two residential units, which were rented to two different tenants at the time the purchase agreement was signed. The property was also described as a two-family house in the notarized purchase agreement. However, it had originally been applied for and approved as a single-family house with an attached apartment.
The buyer only informed the real estate agent after the brokerage agreement had been signed that he intended to live in the property himself. When the agent demanded his commission, the buyer invoked the principle of equal division: the property was a single-family home for him, and therefore the brokerage agreement was invalid. The Berlin Regional Court II ruled in favor of the agent, but the Berlin Higher Regional Court dismissed the appeal. The buyer's appeal to the First Civil Senate of the Federal Court of Justice was also unsuccessful.
The Federal Court of Justice upheld the buyer's claim for commission. The property in question was not a single-family home as defined in Section 656c Paragraph 1 Sentence 1 of the German Civil Code (BGB). Therefore, the brokerage agreement was valid, and the buyer had to pay the full agreed commission. The court maintained its previous rulings and refined them on a crucial point: Subsequent disclosure of the intended use does not invalidate the principle of equal division of the commission.
Expect that real estate agents are aware of this ruling and base their contracts on it. Therefore, check how the property is classified before signing.
Single-family home or not: How the objective condition determines the real estate agent's commission
The Federal Court of Justice classifies a property as a single-family home based on whether, at the time of concluding the brokerage agreement, the acquisition of the property was recognizably intended primarily for the residential purposes of the members of a single household. This recognizability can arise from two sources: the nature of the property itself or from a statement made by the buyer.
In the case at hand, the building's structure clearly contradicted this. It contained two residential units, neither of which was of minor importance. Two fully-fledged apartments, rented to different tenants, do not serve as the residence of a single household. The fact that the original building permit designated it as a single-family home with an attached apartment did not alter this. The decisive factor is the actual condition of the building, not its historical designation in the building records.
In practical terms, this translates to a simple question: What does the house look like at the time the brokerage agreement is signed, and how is it used? A classic house with one apartment falls under Section 656c of the German Civil Code (BGB). A house with a subordinate granny flat may fall under this section if the second unit is clearly subordinate. Two equally valuable, rented apartments do not fall under this section. The distinction is fluid, and the burden of proof lies with the buyer.
Keep the property description, correspondence, and all usage information. These documents will later determine whether your classification can be substantiated.
Disclose your intended use in a timely manner: Why the brokerage agreement is the crucial point in time.
The most important point of the ruling concerns timing. If it is not clear from the objective circumstances that the building is intended for the residence of a single household, it is the buyer's responsibility to make their intended use clear to the real estate agent no later than the conclusion of the brokerage agreement. Anyone who fails to do so cannot later invoke the principle of equal division.
The Federal Court of Justice justifies this with a general principle of civil law: The validity of a legal transaction is assessed according to the circumstances at the time it is concluded. What happens afterward cannot, in principle, invalidate an agreement that was once valid. The real estate agent should know what he is agreeing to at the time of concluding the contract and not find out weeks later that his commission claim has been retroactively invalidated.
In practical terms, this means: If you want to buy a property that isn't clearly a single-family home from the outside—for example, a rented two-family house, a house with a granny flat, or a property with a commercial unit—you must clearly state your intention to use the property yourself before or when signing the real estate agent's contract. And you must be able to explain and prove this intention in case of a dispute. A phone call without witnesses is generally not sufficient.
Document your intention in writing, either by email to the real estate agent or as an addendum to the brokerage agreement. A well-timed statement can later secure five-figure sums.
Reclaiming real estate agent commission: When buyers can demand a refund of the commission paid
Even after this ruling, many commission claims remain contestable. The principle of equal division is just one of several hurdles that cause brokerage contracts to fail. Often, the required written form according to § 656a of the German Civil Code (BGB) is lacking, as is an effective cancellation policy for contracts concluded outside of business premises, or simply due to a lack of demonstrable proof of brokerage or referral services.
Typical starting points for a claim for reimbursement are:
Violation of the written form requirement: A brokerage agreement for an apartment or a single-family home must be in written form. Verbal agreements or a click on a portal page without a documented declaration are insufficient.
Missing or incorrect cancellation policy: If the contract was concluded via distance selling and the buyer was not properly informed about the right of cancellation, the buyer can cancel the contract long after the contract was concluded.
Unequal distribution of commission: If the seller pays less than the buyer or if the commission is waived internally, Section 656c Paragraph 2 of the German Civil Code (BGB) applies and the contract is invalid.
Lack of causality: If the buyer already knew about the property before the real estate agent became involved, the necessary causal link between the real estate agent's services and the purchase agreement is lacking.
Interconnection with the seller: If the real estate agent is economically or legally connected to the seller, the commission claim may be forfeited.
Claims for reimbursement generally expire after three years at the end of the year. Anyone who paid in 2023 must therefore take action. Claim back your broker's commission Check before the deadline expires.
When is legal advice worthwhile regarding real estate agent commissions?
Legal advice is worthwhile the moment a brokerage agreement is signed, not just when the bill arrives. The Federal Court of Justice (BGH) ruling demonstrates that a single overlooked detail can determine whether the full commission is due. Those who clarify the property's classification and what information they need to provide to the broker before signing can potentially save a five-figure sum.
But even afterwards, there are opportunities. Many commission claims don't stand up to legal scrutiny, and paid commissions can be reclaimed within the statute of limitations. It's advisable to... initial legal consultation especially if the real estate agent acted for both parties, if the property is not clearly a single-family home, or if the contract was concluded online or during a viewing appointment.
Often, further questions arise during a real estate purchase, such as defects in the building, disputes about financing, or the Cancellation authorization for the land charge. A law firm that real estate law and banking law If they cover these points together, they can clarify them all in one go. If there is a legal expenses insurance, In many cases, it handles the coverage request for the dispute with the broker.
Have your commission invoice checked before the statute of limitations expires.
Conclusion: The quality and timing of the broker's commission are decisive.
The Federal Court of Justice has not abolished the principle of equal division, but has clearly defined its limits. A rented two-family house with two equivalent residential units is not a single-family house, even if the buyer intends to move in themselves. Anyone wishing to invoke Section 656c of the German Civil Code (BGB) must disclose their intention to occupy the property themselves no later than the conclusion of the brokerage agreement and prove it in court. A later disclosure is insufficient.
For buyers, this means: check everything before signing and document in writing what the real estate agent needs to know. And for those who have already paid: the principle of equal division is just one of several points of contention. Written form, the right of withdrawal, and causality also frequently lead to the invalidity of the real estate agent contract.
Rogert & Ulbrich: Your lawyers in disputes over real estate agent commissions
Rogert & Ulbrich represents real estate buyers nationwide in dealings with real estate agents, sellers, and banks. The lawyers Dr. Marco Rogert and Tobias Ulbrich We run a law firm with over 40,000 cases handled and over 25,000 lawsuits filed. Our focus is on the consistent enforcement of consumer claims against economically stronger opponents.
The law firm reviews brokerage contracts and commission invoices, recovers paid commissions out of court, and, if necessary, represents the case in court. Related issues from the real estate law and the banking law These factors are taken into account to prevent multiple processes from running concurrently. Rogert & Ulbrich advises companies and investors in this area. Real estate law for companies.
Have you received a commission invoice that seems too high, or have you already paid and are wondering if the brokerage agreement was even valid? Get in touch and secure your claims.
