Why real estate agent fees are success-based and when buyers don't have to pay
A real estate agent is not paid for their efforts, but for a successful outcome. A commission claim under Section 652 of the German Civil Code (BGB) only arises if the purchase agreement is actually concluded as a result of their introduction or mediation. If the service or causal link is lacking, buyers are not obligated to pay. Rogert & Ulbrich reviews whether the commission claim is justified and enforces any necessary refunds.
The broker's commission is success-based: the basic rule of § 652 BGB.
A brokerage agreement differs fundamentally from other service contracts. A tradesperson or consultant is paid for their work, while a broker is only paid for a successful outcome. Section 652, paragraph 1 of the German Civil Code (BGB) stipulates that the broker's commission is only payable if the contract is concluded as a result of the broker's introduction or mediation.
It follows that no amount of effort, however considerable, does not in itself establish a claim. Viewings, phone calls, and property brochures are insufficient if no purchase agreement is ultimately concluded that is attributable to the real estate agent's services. Furthermore, if the contract is concluded subject to a condition precedent, such as the granting of a permit, the commission can only be claimed once that condition is met.
Are you being asked to pay a commission even though it's unclear what services the real estate agent provided? Have the claim reviewed.
Proof or mediation: what service must the real estate agent provide?
The law recognizes two types of brokerage services. A broker who simply provides information to their client about a specific, previously unknown opportunity to conclude a contract. A broker who actively facilitates the conclusion of a contract goes further, for example, by negotiating with the other party. Unless otherwise agreed, a real estate agent typically performs both functions.
To establish a claim, either of the two services is sufficient, but it must have actually been rendered. Merely forwarding a publicly known offer or providing only ancillary information that was not crucial to the purchase decision does not constitute a service that would give rise to a claim. Similarly, a real estate agent who prematurely discloses their knowledge without a clear demand for commission acts at their own risk.
Are you unsure whether your real estate agent has provided genuine proof of purchase or brokerage services? We will assess this based on the documents.
No commission without causality: the problem of prior knowledge
The key requirement is a causal link. The purchase agreement must have been concluded as a result of the broker's services, whereby contributing causation is sufficient. If this link is lacking, there is no entitlement to commission, even if the broker actually performed their services.
A common scenario involves prior knowledge. If the buyer was already aware of the specific opportunity to purchase before the real estate agent became involved, the agent's evidence can no longer be considered causal. In that case, the claim is void. This only changes if the agent has provided a significant additional service beyond simply providing information. However, causality is presumed in favor of the agent if they have performed their service and the purchase agreement follows within a reasonable timeframe.
Did you already know the property before contacting the real estate agent? That could argue against the commission claim; we will examine the causal link.
If another contract is concluded: the lack of congruence
The broker's commission claim is contingent upon the conclusion of precisely the transaction that the broker identified or facilitated. If their activity leads to the conclusion of a contract with significantly different terms, no commission is payable. This is referred to as a lack of congruence between the identified and the actually concluded transaction.
This becomes practically significant when the subject matter or conditions change considerably, for example, if a different object is acquired instead of the one offered, or if the economic parameters shift fundamentally. Whether sufficient economic alignment still exists is a question of the individual case and can only be assessed based on the specific contracts.
Does your purchase agreement deviate significantly from the original offer? Have it checked whether the commission claim is still valid.
Burden of proof, forfeiture and non-transparent billing
Whoever demands the commission must prove its existence. The real estate agent bears the burden of proof that a valid brokerage agreement exists, that they have provided a service that gives rise to the claim, and that the purchase agreement is a direct result of this service. A flat-rate or opaque statement of account that fails to clearly demonstrate the service provided and its connection to the transaction is insufficient.
In addition, there is the forfeiture provision of Section 654 of the German Civil Code (BGB). If the real estate agent grossly violates their fiduciary duties, for example by secretly acting for two parties simultaneously, they forfeit their claim entirely. Closely related to this is the issue of a commission-damaging entanglement between the real estate agent and the seller, which we will address separately. As we discussed in the Claim for reimbursement of broker's commission For instructions, please see our service page.
Did you receive an unclear commission statement? We will check whether the claim is comprehensibly justified.
What buyers should check and do
Whether a commission is owed depends on several factors, which are easy to understand. These steps will help:
- Question performanceDid the real estate agent introduce the property to you for the first time or actively broker the deal, or was the property already known to you?
- Check causalityDid the purchase agreement result from the broker's efforts, or would you have concluded it even without him?
- Check for congruenceDoes the concluded contract correspond to what the broker demonstrated or arranged?
- Check invoiceIs it clearly explained which service is being billed and what the amount is based on?
- Have it legally reviewedA legal assessment clarifies whether the claim has arisen or been forfeited and whether you can reclaim a paid commission.
Claims for reimbursement typically expire after three years, so a timely review is worthwhile. Send us your documents and we'll take a look.
Rogert & Ulbrich – Your lawyers in real estate law
Rogert & Ulbrich has been consistently representing consumers against unjustified demands and opaque billing practices 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. real estate law The focus is on the protection of buyers, especially regarding real estate agent commissions and the question of whether a claim-making service has actually been rendered.
We examine whether the real estate agent has provided genuine services in finding or brokering a property, whether the claim is forfeited, and whether a refund is due. If necessary, we enforce your claims, out of court against the agent and, if required, in court. You can conveniently retain our services online; we operate nationwide and, if you have legal expenses insurance, we bill your insurer directly.
Are you unsure whether the real estate agent's commission is justified? Get in touch and secure your rights.
