The dream property in view, the broker gives hope – potential buyers may be willing to pay a fee for keeping an object warm. But what happens to the money if the deal falls through? The BGH is now dealing with this again.
Can an agent charge a fee simply for reserving a property exclusively for a prospective buyer for a period of time? The Federal Court of Justice in Karlsruhe is dealing with this question today. The plaintiffs were interested in a single-family home. The brokerage company that had the property in its portfolio promised them not to sell the house to anyone else for a month – for a fee of almost 15 percent of the agreed commission. In the end, the interested parties didn’t buy the house after all. In court they claim back the paid reservation fee.
The BGH dealt with a similar case in 2010 – and declared the clause on the reservation fee to be invalid at the time. The judges saw this as an attempt to secure non-successful remuneration even if mediation efforts failed. The customer has very little of it: because it can still happen that the previous owner backs out or sells the property to someone else on his own initiative. At that time, the clause was directly included in the pre-formulated contract terms.
In this case, there is a written reservation agreement that was concluded in addition to the actual brokerage contract. The Dresden District Court was therefore of the opinion that the agreement was effectively concluded here. If it stayed that way, the broker could keep the fee.
According to the experiences of the German Real Estate Association (IVD), reservation agreements for a fee are not particularly widespread in the industry. The uncertain legal situation has also led to reluctance among brokers, said the IVD legal advisor and deputy federal manager Christian Osthus. “Many say to themselves: You could do that – but whether it will last or not is uncertain.” Reservation fees are currently most common when buying new apartments directly from the developer.
The BGH is also concerned with the question of whether such an agreement would have to be notarized. In 2010, the top civil judges left this point unresolved because it no longer played a role. The Karlsruhe judges want to announce the verdict at an extra appointment in the next few weeks
