What tenants, home buyers and real estate agents should know before the hearing on November 19, 2026
Do tenants who purchase their apartments through a right of first refusal have to pay the full real estate agent's commission, even though they never hired the agent? The Federal Court of Justice will hear arguments on this matter in two cases (I ZR 116/26 and I ZR 117/26) on November 19, 2026. The Berlin Court of Appeal dismissed the real estate agency's claims. Rogert & Ulbrich is examining whether a commission claim is justified and whether a commission already paid can be reclaimed.
What are the proceedings I ZR 116/26 and I ZR 117/26 about?
A real estate agency presented a housing association with an opportunity to purchase an apartment building. The purchase agreement (initial purchase agreement) stipulated that only the buyer would pay the agent's commission. In the event that tenants exercised their right of first refusal, the respective tenant would be liable for the commission. According to reports in the trade press, the commission amounted to 6 percent of the purchase price plus VAT.
Two tenants exercised their right of first refusal for the apartments they occupied. The real estate agency subsequently demanded payment of the commission from them. The tenants refused to pay, arguing that this violated the legal principle that buyers and sellers should share the real estate agent's commission equally when consumers purchase an apartment.
The Berlin II Regional Court upheld the claims (judgments of January 20, 2025, 83 O 109/23, and of April 16, 2024, 91a O 15/23). The Berlin Higher Regional Court dismissed them with judgments of February 5, 2026 (10 U 29/25 and 10 U 52/24). The First Civil Senate of the Federal Court of Justice, which is responsible for real estate brokerage law, will now decide on the appeals.
Did you receive a commission invoice after exercising your right of first refusal? Do not pay without checking it first.
Tenant pre-emption rights and real estate agent clauses: Why tenants are suddenly supposed to owe commission
If a rented apartment is converted into condominium ownership and sold to a third party, the tenant generally has a right of first refusal under Section 577 of the German Civil Code (BGB). If the tenant exercises this right, the purchase agreement is concluded between the tenant and the seller under Section 464 Paragraph 2 of the German Civil Code (BGB), specifically under the conditions agreed upon by the seller with the original buyer.
This is precisely where broker clauses come into play. If the purchase agreement stipulates that the buyer pays the commission, this obligation is intended to transfer to the tenant. Lawyers refer to this as a constitutive broker clause: it establishes an independent claim for payment by the broker, even though the tenant has not entered into a brokerage agreement themselves.
The courts generally recognize such clauses. However, they are only binding on the holder of the right of first refusal if the commission agreement is an integral part of the purchase contract. If it appears as an extraneous element, for example, because an unusually high commission has been agreed upon, the holder of the right of first refusal is not bound by it. You can find further information on buying an apartment on our page about... Real Estate Law for Consumers.
Review the initial purchase agreement before exercising your right of first refusal. The broker's clause can determine sums in the five-figure range.
The principle of equal division according to §§ 656c, 656d BGB
Since December 23, 2020, the law protects consumers buying an apartment or single-family home from the unilateral passing on of real estate agent fees. Two rules are crucial:
- Dual employment (§ 656c BGB): If the real estate agent agrees to a commission from both buyer and seller, both must be obligated to pay the same amount. If the agent works for one party free of charge, they cannot demand anything from the other.
- Transfer of ownership (§ 656d BGB): If only one party has commissioned the real estate agent, the other party may only be obligated to pay an amount equal to the commission. The commissioning party must bear at least half of the costs themselves.
A brokerage agreement that violates these provisions is invalid. In 2025, the German Federal Court of Justice (BGH) ruled that brokers can forfeit their commission entirely in cases of violations. On July 16, 2026, it also defined the limits: In the case of an objectively defined two-family house, the principle of equal division applies only if the buyer discloses their intention to use the property themselves in a timely manner (I ZR 111/25).
In the current case, the problem lies elsewhere. The housing association has purchased an apartment building and is not a consumer. Therefore, the principle of equal division does not apply to it. The tenant, on the other hand, is a consumer and is purchasing an individual apartment. Whether a commission already paid can be reclaimed in such cases is explained on our page [link to relevant page]. Claim for reimbursement of broker's commission.
This is how the Higher Regional Court decided
The Higher Regional Court sided with the tenants. While the holder of the right of first refusal generally assumes the terms of the original purchase agreement pursuant to Section 464 Paragraph 2 of the German Civil Code (BGB), the real estate agency cannot invoke the commission agreement against the tenants because this contradicts the principles of Sections 656c and 656d of the German Civil Code (BGB).
The reasoning: It was clearly evident to the parties to the initial purchase agreement and to the real estate agency that there were tenants with pre-emption rights and that these were consumers. A direct agreement would not have effectively imposed the full commission on them. The clause was therefore an anomaly in the purchase agreement. Exceeding the principle of equal division justified the assumption of an unusually high commission, which was not binding on the holder of the pre-emption rights.
The Higher Regional Court expressly left open the question of whether Sections 656c and 656d of the German Civil Code (BGB) are applicable by analogy and whether the broker's clause is therefore invalid.
Does your contract clause resemble the Berlin case? Have it checked to see if you can refuse payment.
What the Federal Court of Justice (BGH) needs to clarify and what that means for real estate agents and sellers
The outcome is uncertain. The Federal Court of Justice (BGH) will hear the case on November 19, 2026, at 11:00 a.m. A verdict could be delivered on the same day or at a later date. The core issues at stake are these:
- Scope of Section 464 Paragraph 2 of the German Civil Code (BGB): Does the tenant, through the purchase agreement, also assume a commission obligation that could not have been imposed on him directly as a consumer?
- Foreign elements in the purchase agreement: Does the mere violation of the principle of equal division already make the commission an unusually high remuneration?
- Analogous application: Do Sections 656c and 656d of the German Civil Code (BGB) apply accordingly, even though the tenant has not concluded their own brokerage agreement?
This procedure is equally important for real estate agents, sellers, and first-time buyers. If the Federal Court of Justice (BGH) upholds the Berlin Court of Appeal's ruling, the commission will be waived for all apartments where tenants exercise their right of first refusal. Anyone brokering or selling multi-family homes with tenants who have this right should review their brokerage clauses now. Information for businesses can be found on our page about this. Real estate law for companies.
What tenants and homebuyers should do now
Tenants who exercise or have exercised their right of first refusal should not wait for the verdict. These points are important:
- Review the purchase agreement: Read the broker's clause in the initial purchase agreement carefully. The crucial points are who is to pay the commission, how much it is, and whether the seller is involved.
- Please note the deadline: The right of first refusal for land and apartments must be exercised in writing to the seller within two months of notification of the purchase agreement (§§ 469 para. 2, 577 para. 3 BGB).
- Do not pay without checking: You should have any commission invoice legally reviewed before payment. If payment is made, it should be expressly subject to the right to reclaim it.
- Check for refunds: If you have already paid, you may be entitled to a refund. This right typically expires after three years at the end of the year in which it was paid. For payments made in 2023, the statute of limitations may expire as early as the end of 2026.
- Secure documents: Keep the purchase agreement, notice of pre-emption, invoice and payment receipts, as well as all correspondence with the real estate agent and seller.
We describe the procedure for an initial examination on our page about initial consultation. Do not wait for the Federal Court of Justice's decision to review your case. The statute of limitations and payment deadlines continue to run.
Rogert & Ulbrich – Your lawyers in real estate law
Rogert & Ulbrich represents consumers and companies in real estate law, brokerage law and consumer protection. Dr. Marco Rogert and Tobias Ulbrich lead with their team For many years, the firm has handled legal proceedings for clients throughout Germany. It has taken on over 40,000 cases and filed over 25,000 lawsuits.
We review purchase agreements and broker clauses, defend against unjustified commission claims, and assert claims for reimbursement. This is initially done out of court and, if necessary, in court. We advise tenants even before they exercise their right of first refusal, so that the commission issue is clarified before deadlines expire.
Have you received a commission invoice or already paid it? Get in touch and secure your claims.
