Ina Ree­se Tax & Legal Prac­ti­ce – Flens­burg | Harrislee

Federal Court of Justice: Who pays the estate agent’s commission on a two-family house?

The Fede­ral Court of Jus­ti­ce (BGH) has ruled that anyo­ne who fails to sta­te that they are purcha­sing a pro­per­ty for their own use in good time loses their entit­le­ment to half the estate agent’s commission. 
Federal Court of Justice: Who pays the estate agent’s commission on a two-family house?

Federal Court of Justice: Who pays the estate agent’s commission on a two-family house?

Anyo­ne who buys a house and enga­ges an estate agent who is also acting on behalf of the sel­ler may be fami­li­ar with the prin­ci­ple of 50–50 com­mis­si­on split: Sin­ce 2020, Sec­tion 656c of the Ger­man Civil Code (BGB) has sti­pu­la­ted that the buy­er and sel­ler must share the estate agent’s com­mis­si­on equal­ly if the estate agent is acting on behalf of both par­ties. Howe­ver, this rule only appli­es to the purcha­se of a flat or a Detached house. The Fede­ral Court of Jus­ti­ce has now cla­ri­fied exact­ly when a pro­per­ty can be clas­si­fied as a detached house and when it cannot.

The case: a two-family house, but intended for the owner’s own use

An estate agent had arran­ged for a buy­er to purcha­se a pro­per­ty that had been adver­ti­sed as a let two-fami­ly house. At the time the con­tract of sale was con­cluded, both resi­den­ti­al units were let to sepa­ra­te ten­ants. The pro­per­ty was also express­ly descri­bed as a two-fami­ly house in the nota­ri­sed con­tract of sale.

The buy­er only infor­med the estate agent upon con­clu­si­on of the estate agen­cy agree­ment sta­ting that he actual­ly inten­ded to use the pro­per­ty for his own resi­den­ti­al pur­po­ses. He took the view that the com­mis­si­on agree­ment was inva­lid becau­se the prin­ci­ple of equal sha­ring set out in Sec­tion 656c of the Ger­man Civil Code (BGB) had not been obser­ved. Accor­din­gly, he argued that he should not have been requi­red to bear the full cost of the estate agent’s com­mis­si­on on his own. The Ber­lin Regio­nal Court ruled in favour of the estate agent, and the Ber­lin Court of Appeal upheld the judgement.

The Federal Court of Justice’s ruling

On 16 July 2026, the Fede­ral Court of Jus­ti­ce dis­missed the buyer’s appeal (Case No. I ZR 111/25). The estate agent’s cla­im to com­mis­si­on is valid. The court jus­ti­fied this on the grounds that the pro­vi­si­on regar­ding the 50–50 split of com­mis­si­on only appli­es if the pro­per­ty can objec­tively be clas­si­fied as a detached house.

The key fac­tor here is the timing of the Con­clu­si­on of the con­tract. The decisi­ve fac­tor is whe­ther, based on its actu­al natu­re, the pro­per­ty is reco­g­nis­ab­ly inten­ded pri­ma­ri­ly for the resi­den­ti­al pur­po­ses of the mem­bers of a sin­gle house­hold ser­ves. In the pre­sent case, this was not the case: the buil­ding com­pri­sed two equi­va­lent resi­den­ti­al units, neither of which was of les­ser importance than the other.

If the natu­re of the pro­per­ty does not cle­ar­ly indi­ca­te that it is a detached house, the Fede­ral Court of Jus­ti­ce (BGH) holds that it is up to the buy­er to inform the estate agent of their inten­ded use at the latest when the con­tract is con­cluded to noti­fy. Anyo­ne who does so only after­wards can no lon­ger invo­ke the prin­ci­ple of equal divi­si­on. Sub­se­quent cir­cum­s­tances can­not, as a gene­ral rule, retroac­tively inva­li­da­te a con­tract that has alre­a­dy been concluded.

What does that mean in practice?

For pro­per­ty buy­ers, this ruling pro­vi­des important gui­dance. Anyo­ne wis­hing to purcha­se a pro­per­ty that is for­mal­ly clas­si­fied as, or adver­ti­sed as, a two-fami­ly house, but is in fact inten­ded for their own resi­den­ti­al use, should take this inten­ded use into account eit­her befo­re or at the time of con­clu­ding the estate agent’s con­tract Com­mu­ni­ca­te cle­ar­ly. Only then can the sta­tu­to­ry pro­tec­tion regar­ding the 50–50 split of com­mis­si­on take effect.

  • In the case of stan­dard detached hou­ses, the com­mis­si­on is auto­ma­ti­cal­ly split equally.
  • In the case of blocks of flats or pro­per­ties com­pri­sing seve­ral equi­va­lent units, the buy­er must dis­c­lo­se their inten­ti­on to occu­py the pro­per­ty for their own use in good time.
  • Anyo­ne who fails to do so will, in the event of a dis­pu­te, be sole­ly lia­ble for the full agreed commission.

In some cases, it can be dif­fi­cult to distin­gu­ish bet­ween a detached house with a gran­ny flat and a semi-detached house. Anyo­ne who is unsu­re should seek legal advice befo­re sig­ning an estate agent’s contract.

This post and the accom­pany­ing image were crea­ted with the help of AI and have been edi­to­ri­al­ly reviewed.

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