Anyone buying a house comprising two equivalent residential units cannot automatically invoke the statutory rule of equal division when it comes to the estate agent’s commission. The Federal Court of Justice has clarified this in a recent judgement, thereby defining the concept of a single-family house more precisely in estate agency law.
What is the principle of half-division all about?
Since 2020, the following has applied in Germany: if an estate agent charges a commission to both the seller and the buyer of a property, both parties must pay the same amount. This rule, known as the ‘half-and-half principle’, is enshrined in Section 656c of the German Civil Code (BGB) and applies, however, only to the purchase of a flat or a detached house. Any estate agent’s contract that deviates from this is legally invalid.
The case: Buyer wishes to live in the semi-detached house themselves
An estate agent had arranged for the buyer to purchase a plot of land with a house comprising two fully self-contained residential units, each let separately. The property was described in the advert as a two-family house and was also referred to as such in the notarised contract of sale. It was only after the estate agent’s contract had been concluded that the buyer informed the estate agent that he intended to live in the house himself in future.
The buyer subsequently refused to pay the estate agent’s commission. He argued that the estate agent had breached the principle of equal division, as he had not divided the commission equally between the buyer and the seller. He therefore contended that the estate agency agreement was invalid.
Federal Court of Justice: The intention to use the property must be apparent at the time the contract is concluded
The Federal Court of Justice ruled in favour of the estate agent. The court decided that, when determining whether a property is to be classified as a detached house, the decisive factor is the date on which the contract was concluded. The objective characteristics of the building are the primary determining factors in this regard.
A house comprising two residential units of equal status, neither of which is of secondary importance, does not meet the criteria for a single-family house. The court pointed out that, whilst it had regarded a granny flat as harmless in previous rulings, a fully-fledged second residential unit differs fundamentally from a granny flat.
If a buyer nevertheless wishes their personal intended use to be taken into account in the valuation, they must inform the estate agent of this no later than when the agency agreement is concluded. Anyone who fails to do so cannot subsequently invoke the principle of equal division. In the event of a dispute, the buyer would also have to prove that they had communicated their intention in good time.
What does that mean in practice?
For property buyers, this ruling means that the mere intention to move into a two-family house oneself does not exempt them from the obligation to pay the estate agent’s commission in full. Anyone wishing to claim the statutory 50–50 split must clearly and verifiably state their intention to live in the property before, or at the latest at the time of, concluding the contract.
When considering the issue of estate agent’s commission, buyers and sellers should bear in mind the specific nature of the property and, if in doubt, seek legal advice before signing an agency agreement.
Federal Court of Justice (BGH), judgement of 16 July 2026, Case No. I ZR 111/25
Source: Haufe: Property
This post and the accompanying image were created with the help of AI and have been editorially reviewed.
