Three legal avenues by which property buyers can reclaim an unjustly paid real estate agent commission
Many buyers of condominiums or single-family homes pay a real estate agent's commission that they don't owe at all, or not in full. Since the reform of real estate agent law at the end of 2020, wrongly paid commissions can be reclaimed via three clearly defined avenues. Rogert & Ulbrich reviews your real estate agent contract and enforces legitimate claims for reimbursement both in and out of court.
Why checking the real estate agent's commission is almost always worthwhile for buyers
When buying a property, the real estate agent's commission can quickly add up to a five-figure sum. For a purchase price of €500,000, the buyer's share is often between €8,000 and €18,000, depending on the region. In many cases, this amount can be fully or partially reclaimed because strict legal regulations have been in place since December 23, 2020, and not every real estate agent complies with them.
The law protects buyers of condominiums and single-family homes who are acting as consumers. Special regulations apply to them regarding the form of the brokerage contract, the division of costs between buyer and seller, and the right of withdrawal. If the broker violates even one of these regulations, the commission paid can be reclaimed in part or in full.
Time is of the essence: claims for reimbursement generally expire after three years. Anyone who has paid a commission in recent years should therefore have their contract reviewed promptly before the claim is lost.
Did you pay a real estate agent's commission when buying a property? Have it checked whether the payment was justified before the statute of limitations takes effect.
An overview of the three recovery methods
There are three independent grounds for reclaiming a real estate agent's commission. Each grounds stand on its own. If one applies, there is a claim for repayment – sometimes the full commission, sometimes the difference paid in excess of half. In practice, we examine all three grounds simultaneously and pursue the one with the best prospects first.
Option 1: The brokerage agreement was not concluded in written form.
When a consumer purchases an apartment or a single-family home, the brokerage agreement must be in written form (§ 656a BGB). Written form means a legible, permanent declaration that identifies the person making the declaration, for example, by email, fax, or letter. A contract concluded only orally or through implied conduct is invalid. Simply requesting a property brochure, attending a viewing, or expressing interest by telephone does not constitute a legally valid brokerage agreement.
If the written form is lacking, no commission claim exists from the outset. Any commission paid nonetheless can be reclaimed in full. This is often the most effective approach because it invalidates the entire claim for remuneration. In our article on the written form of brokerage agreements, we explain which communication methods are sufficient and which are not.
Option 2: Violation of the statutory commission sharing
Since the reform, buyers and sellers generally share the broker's commission. If the broker acts for both parties (dual agency), they may only charge each party the same commission (§ 656c BGB). An agreement that places a greater burden on the buyer is invalid. If only the seller has commissioned the broker and the buyer is to share the costs, the buyer may only pay a maximum of half, and the claim against them only becomes due once the seller has paid their share and provided proof of payment (§ 656d BGB).
This results in two typical scenarios for claiming a refund: If the buyer has paid more than half or the full commission, they can reclaim the difference. If they paid before the seller has demonstrably settled their share, the payment was premature. You can read more about the division of brokerage fees and the seller's burden of proof in our in-depth article on commission sharing.
Option 3: Revocation of the brokerage agreement
If a brokerage agreement with a consumer is concluded remotely (e.g., by telephone, email, or via an internet platform) or outside the broker's business premises, the buyer has a right of withdrawal of 14 days (§§ 312g, 355 German Civil Code). If the broker has not properly informed the buyer of this right, the period is extended to up to twelve months and 14 days (§ 356 German Civil Code).
If the contract is effectively revoked, the commission claim lapses and any commission already paid must be refunded. In practice, the information regarding the right of revocation is often flawed or entirely missing, meaning the extended revocation period applies. We address the key aspects of the information provided, the start of the revocation period, and potential compensation for services rendered in a separate article on revoking a brokerage contract.
Are you unsure which course of action applies in your case? Have your brokerage contract reviewed instead of paying a claim without having it checked.
The correct check sequence: Step by step to recovery
Which of the three paths leads to the goal only becomes clear after a thorough examination. The following sequence has proven effective because it begins with the most powerful lever and doesn't overlook any deadlines:
- Secure the following documents: compile the brokerage agreement, all email correspondence, property details, commission invoice, purchase agreement and proof of payment.
- Check the form (Way 1): Was a brokerage agreement actually concluded in written form? If the written form is missing, the commission can often be reclaimed in full.
- Check commission sharing (option 2): Who commissioned the real estate agent? Did the seller pay and prove their share? Was the buyer charged more than half?
- Check the cancellation (Method 3): How was the contract concluded (online, by phone, at the doorstep)? Was the right of cancellation correctly explained?
- Note the statute of limitations: The claim regularly expires after three years, calculated from the end of the year in which payment was made (§§ 195, 199 BGB).
- Enforce your claim: first, send an out-of-court request for repayment; if refused, file a lawsuit for repayment.
The form is deliberately placed first: if it is correct, the commission claim is entirely forfeited, and the other questions become irrelevant. Only then is it worthwhile to consider commission sharing and revocation, which can each lead to a partial or full refund.
Unsure where your case falls within this review process? We'll place your contract within this sequence of steps and identify the most promising course of action.
Which purchases and which buyers are protected
The strict rules regarding form, commission sharing, and cancellation do not apply to every real estate purchase. Only buyers acting as consumers (§ 13 BGB) are protected, and only when acquiring certain types of properties. The decisive factor is the combination of property type and buyer status.
- Condominium: The purchase of an apartment by a consumer falls entirely under the reform rules.
- Single-family house: The purchase of a single-family home by a consumer is also covered, including a subordinate granny flat.
Typically not covered are the purchases of apartment buildings, commercial properties, and undeveloped land, as well as purchases by companies or commercial investors. In these cases, the formal and division rules do not apply. However, a claim for reimbursement may be considered for other reasons, such as if the real estate agent did not broker or facilitate the conclusion of the contract, or if they are too closely tied to the seller financially.
Unsure whether your purchase is covered by legal protection? A quick check of the type of property and your buyer status will clarify things.
Deadlines, evidence and typical mistakes in claiming refunds
In practice, a legitimate claim for reimbursement rarely fails due to legal reasons, but rather due to avoidable errors. The most important points:
- Keep the statute of limitations in mind: The right to a refund generally expires after three years. Anyone who waits too long loses the claim, even if the commission was clearly paid unlawfully.
- Secure proof of payment: The commission invoice, bank transfer receipt, and correspondence with the broker are the key pieces of evidence. Anyone who paid without a written contract should specifically document this gap.
- No premature recognition: A signed acknowledgment of debt or an unconditional payment can complicate enforcement. If in doubt, have it reviewed first.
- A paid invoice is not proof of the claim: The fact that a commission invoice has been issued and paid says nothing about whether the claim was legally valid in the first place.
Do not pay or sign anything until the brokerage agreement has been reviewed.
Have you already paid? The sooner the statute of limitations is stopped and the claim is asserted, the better the chances of a refund.
Rogert & Ulbrich – Your lawyers in real estate law
Rogert & Ulbrich represents consumers nationwide against real estate agents, banks, and companies. Attorneys Dr. Marco Rogert and Tobias Ulbrich and their team have handled over 40,000 cases and filed over 25,000 lawsuits. This experience benefits buyers who want to reclaim wrongly paid real estate agent commissions.
We will review your brokerage agreement using all three possible avenues for recovery, determine the most promising approach, and enforce your claim – initially out of court by demanding repayment, and if the broker refuses, through legal action. You will receive a clear assessment of your chances of success, deadlines, and further steps.
Did you pay a real estate agent's commission when buying an apartment or house and now have doubts about its legitimacy? Get in touch and secure your rights.
