Why buyers can reclaim the entire real estate agent's commission if the principle of equal division is violated.
The Federal Court of Justice ruled on March 6, 2025: If an agreement shifts the entire commission to the buyer, even though only the seller commissioned the real estate agent, it is entirely invalid. Buyers then receive not just half, but the entire commission paid back. Rogert & Ulbrich will review your case and enforce your claim for reimbursement.
What the BGH ruling I ZR 138/24 was about
In 2021, buyers expressed interest in a house plot being marketed by a real estate agent on behalf of the seller. The property listing stated a purchase price of €397,500, indicating that no commission would be payable by the buyer. During negotiations, the purchase price was ultimately reduced to €370,000. This reduction corresponded exactly to the €25,000 commission owed by the seller to the agent.
In a separate agreement signed by the buyers and the real estate agent, the buyers committed to paying the full commission of €25,000 to the agent. They paid the amount after the notarization and later demanded its return. The Bonn Regional Court initially granted the claim for repayment in full. The Cologne Higher Regional Court reduced the claim to half, i.e., €12,500, on the grounds of a reduction that preserved the validity of the agreement. The Federal Court of Justice overturned this decision.
Did you, as the buyer, pay the full real estate agent's commission even though the seller had hired the agent? Have it checked whether you are entitled to the full amount.
What the Federal Court of Justice decided
The relevant section is § 656d of the German Civil Code (BGB). According to this section: If only one party to the purchase agreement, in this case the seller, has concluded a brokerage agreement, an agreement obligating the buyer to pay the brokerage fees is only valid if the commissioning party itself bears at least the same share. The buyer may therefore never be burdened more heavily than the seller.
That was precisely not the case here. Since the buyers were to bear the full commission internally, the seller was no longer obligated to the same amount. This constituted a violation of Section 656d of the German Civil Code (BGB). The consequence: The agreement is entirely void; a reduction to half to preserve its validity is not permissible. The Federal Court of Justice expressly rejected the halving of the commission assumed by the Higher Regional Court and reinstated the full repayment.
Are you unsure whether your commission agreement violates the principle of equal division? A legal review will provide clarity.
Why lowering the purchase price does not cure the violation
In practice, the principle of splitting the commission equally is often circumvented through a specific arrangement: The seller commissions the real estate agent, the purchase price is reduced by the commission amount, and the buyer, in a separate agreement, assumes the full commission. Economically, the buyer then bears the entire cost of the real estate agent.
The Federal Court of Justice has blocked this avenue. Section 656d of the German Civil Code (BGB) covers not only agreements between buyer and seller, but all agreements that directly or indirectly establish a broker's claim for commission against the non-engaging party. This expressly includes a separate agreement between the broker and the buyer. A reduction in the purchase price does not change this. Such circumvention schemes are invalid.
If your purchase price was reduced and you, in return, bore the entire commission, it's worth taking a close look at the documents.
Full refund instead of a partial one: the consequences for buyers
Because the agreement is entirely invalid, the real estate agent has no claim to the commission from the buyer. Buyers can reclaim any payments already made in full. The legal basis for this is the claim for unjust enrichment under Section 812 of the German Civil Code (BGB). In the case at hand, the amount in question was €25,000, which the buyers received back in full.
This is the crucial difference from the previously widespread assumption. For a long time, it was believed that a violation only resulted in a refund of the overpaid half. The Federal Court of Justice has clarified that this is not the case. Affected buyers receive not half, but the entire commission paid back.
The exact amount of your claim depends on the contract terms. Have your case reviewed before any claims expire.
Which buyers may now be affected
The ruling does not only apply to the specific case decided. Comparable arrangements can be found in numerous purchase agreements from recent years. These constellations are particularly common:
- Full commission paid to the buyerThe seller has commissioned the real estate agent; the buyer pays the entire commission.
- Purchase price reduction in exchange for assumption of commissionThe purchase price is reduced by the commission amount, but the buyer pays the full commission.
- Separate commission agreementThe buyer and the real estate agent make a separate agreement regarding the commission, separate from the purchase contract.
For these rules to apply, three conditions must be met: the property must be an apartment or a single-family home, the buyer must be acting as a consumer, and the brokerage agreement must have been concluded after December 23, 2020. The general background to the principle of equal division according to Sections 656c and 656d of the German Civil Code (BGB) is explained in detail in a separate guide.
Do you recognize your situation in any of these scenarios? Then you should have your claim reviewed.
What affected buyers should do now
Violating 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 most suitable in your case. These steps will help:
- Compile documents: notarized purchase agreement, brokerage agreement, commission agreement, property exposé and proof of payment.
- Clients clarifyCheck who commissioned the real estate agent and whether the seller himself paid at least the same share.
- Note the statute of limitations.Claims for reimbursement regularly expire after three years, calculated from the end of the year in which you paid and became aware of the circumstances.
- Have it legally reviewedA legal assessment will clarify whether a violation has occurred and how high your claim is.
The sooner you act, the more likely you are to meet your 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 invalid contract clauses and excessive demands 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 current developments in the case law of the Federal Court of Justice.
We review your purchase agreement and commission 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 the full real estate agent's commission when buying your property and suspect a violation of the principle of equal division? Get in touch and secure your claims.
