What formal requirements apply to brokerage contracts and when buyers do not yet have to pay the commission
Since December 2020, a real estate agent contract for an apartment or single-family home must be in writing; verbal agreements are invalid. And before you, as the buyer, have to pay, you must prove that the seller has already paid their share of the commission. Rogert & Ulbrich will check whether these requirements have been met in your case.
Why brokerage contracts need to be in written form
Since December 23, 2020, Section 656a of the German Civil Code (BGB) has required certain brokerage contracts to be in written form. This applies to contracts that involve providing proof of an opportunity to conclude a purchase agreement for an apartment or a single-family home, or brokering such an agreement. If the written form requirement is not met, a valid brokerage contract is not formed.
The purpose is to secure evidence. Before the reform, it was often unclear whether and with what content a brokerage agreement had actually been concluded, especially in the case of telephone or verbal agreements. The written form is intended to prevent such disputes. Unlike the rules regarding the equal sharing of costs, the written form requirement applies regardless of whether the buyer is a consumer or a business.
Are you unsure whether a valid brokerage agreement exists in your case? Have the form of your contract reviewed.
What counts as text form and what doesn't
According to § 126b of the German Civil Code (BGB), written form means that a legible declaration, in which the person making the declaration is named, is submitted on a durable medium. A handwritten signature is not required. The crucial point is that the declaration is permanently stored and readable.
- Sufficient: Email, an attached PDF, a letter, an SMS or a message via an online form, provided that the content and person are identifiable.
- Not sufficient: a purely oral or telephone-based contract as well as mere conclusive conduct without a documented declaration.
In practice, the written form requirement is often met by an email or an online exposé. Whether this specific communication is sufficient in your case depends on the individual circumstances and should be reviewed.
What are the consequences of a procedural violation?
If the written form is lacking, the brokerage agreement is void according to § 125 of the German Civil Code (BGB). For you as the buyer, this has a clear consequence: the broker cannot demand a commission. If payment has already been made, a refund may be possible because there is no valid legal basis for the payment.
The reverse side must also be considered. If the brokerage agreement is invalid due to a lack of form, conversely, no claims can be derived from this agreement against the broker. However, regarding the commission, the following remains true: without a valid written contract, there is no entitlement to a commission.
Did you pay a commission without a written contract? Have it checked whether you can reclaim the money.
The burden of proof: must the real estate agent prove the seller's payment?
This is where Section 656d Paragraph 1 Sentence 2 of the German Civil Code (BGB) comes into play. If only the seller has commissioned the real estate agent and the buyer is to bear part of the commission, the claim against the buyer only becomes due when two conditions are met: The seller must have actually paid their share, and the seller or the real estate agent must provide proof of this.
The answer to the initial question is therefore: Yes, the seller's payment must be proven before the buyer has to pay. This proof can be provided by the seller or the real estate agent. This rule protects you from excuses. You are not obligated to pay based solely on the seller's claim that they have already paid their share.
Were you charged a commission without proof of payment from the seller? We will investigate whether the claim was even valid.
What this means for buyers in practice
The obligation to provide proof of payment opens up specific courses of action. As long as proof of payment from the seller is not available, the commission is not due to you. You can withhold payment until proof is provided and actively request this from the real estate agent.
If, however, you have already paid even though the seller has not paid their share or not in the same amount, a refund may be possible. This is closely related to the principle of equal division according to Sections 656c and 656d of the German Civil Code (BGB), which requires an equal distribution of brokerage fees.
Did you pay without proof of the seller's share? Have your claim reviewed before deadlines expire.
What buyers should check and do
Form and proof requirements are two starting points for questioning a commission claim. They are part of a broader review process that also includes the right of withdrawal for distance contracts and the invalidity of defective online order buttons. These steps are advisable:
- Reviewing documentsBrokerage agreement, commission agreement, email correspondence, exposé, purchase agreement and proof of payment.
- Check formWas the brokerage agreement concluded in written form or is it based solely on verbal agreements?
- request proofIs there proof that the seller has paid their share?
- Have it legally reviewedA legal assessment clarifies whether the claim is valid and due, and whether a refund is possible.
The more complete your documents are, the more accurately we can assess your case. Send us the documents and we will review your options.
Rogert & Ulbrich – Your lawyers in real estate law
Rogert & Ulbrich has been consistently representing consumers against invalid contracts 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 brokerage contracts and commission claims.
We will review whether your brokerage agreement complies with the legal requirements for written form, whether the commission claim is due, and whether a claim for reimbursement exists. If necessary, we will enforce your claims, out of court against the broker and, if required, in court. You can conveniently retain our services online; we operate nationwide and, if you have legal expenses insurance, we will bill your insurer directly.
Do you have doubts about a real estate agent's commission or the form of your contract? Get in touch and let us protect your rights.
