A real estate agent has to forego her commission of a good 15,000 euros because she incorrectly informed a customer about her right of withdrawal. Two cancellation instructions do not help if one of them is wrong, the Nuremberg-Fürth district court ruled.
Again and again, real estate agents stumble over the right of withdrawal, with which they have to inform their private customers about the possibility of withdrawing from an order. This can be expensive because if the broker is sloppy, the customer does not have to pay or can claim back a commission that has already been paid.
A Bavarian real estate agent now had to find out. Due to an incorrect cancellation policy, she is not entitled to any brokerage commission, the Nuremberg-Fürth Regional Court (Az.: 14 O 1492/22) ruled in a judgment that is not yet final.
The broker had been commissioned to sell a condominium and had advertised it on a real estate internet platform, among other places. The future buyer contacted us via this portal and expressed interest. She then received an exposé for the apartment, a data protection declaration and a cancellation policy from the broker.
However, this contained neither the legally required model cancellation form nor a telephone number for the broker. The cancellation policy is therefore incorrect and this means that the cancellation period of 14 days does not begin to run, according to the court.
As a result, the customer was able to effectively revoke the contract with the broker after purchasing the apartment and accordingly does not have to pay any commission. It does not change that, in the agent’s opinion, the customer received a second, correct cancellation policy from the real estate portal. Firstly, according to the court, it cannot be proven that the customer actually received this cancellation policy. And secondly, the differences between the two instructions meant that the unambiguous instruction required by the legislature was lacking overall.
The result is that the agent’s lawsuit for her fee of a good 15,000 euros was dismissed. In our experience, this case is not an isolated case. Again and again, real estate agents get tangled up in the right of withdrawal. That can cost them the commission. This also applies if the broker’s commission claim is recorded in the notarial purchase contract for the property.
Even if the customer – in order to avoid delays – confirms that the broker should work for him immediately and his right of withdrawal thereby expires prematurely, this does not change the options described. Because this clause is annulled by an incorrect cancellation policy of the broker.
However, an approach is not unlimited. Because the law says: If a real estate agent informs his customer incorrectly, the cancellation period is extended from 14 days to 12 months and 14 days. The commission of the broker must therefore not be more than a good year ago. If you want to have it checked whether you have been correctly informed by a real estate agent, you can contact a specialized lawyer or consumer advocates.
About the author: Roland Klaus works as a freelance journalist and is the founder of the revocation interest group. He became known as a Frankfurt stock exchange reporter for n-tv, N24 and the US financial broadcaster CNBC.
(This article was first published on Tuesday, September 27, 2022.)
