When tenants buy their flat by exercising a statutory right of pre-emption, an important question arises: can they then be obliged to bear the entire estate agent’s commission on their own? This is precisely the issue to be heard by the Federal Court of Justice on 19 November 2026 in two cases (Case Nos. I ZR 116/26 and I ZR 117/26).
What is it about?
In both cases, an estate agency had assisted a housing association with the purchase of a block of flats. The contract of sale between the estate agent and the housing association stipulated that the purchaser would pay the estate agent’s commission in full and that this obligation would pass to the relevant tenant in the event of the exercise of tenants’ pre-emption rights.
Several tenants exercised their statutory right of pre-emption and purchased their flats. The estate agency subsequently demanded the full commission from them. The tenants refused, citing the statutory principle of equal division.
What is the principle of division by half?
Since 2020, Sections 656c and 656d of the Civil Code have stipulated that, when purchasing a flat or a detached house, the estate agent’s commission must be split equally between the buyer and the seller, provided that both parties are to be obliged to pay. An agreement that obliges only the buyer to pay the full amount is, in principle, invalid. This protection applies in particular to consumers.
What were the decisions of the lower courts?
The Berlin Regional Court initially ruled in favour of the estate agency and ordered the tenants to pay. The Berlin Court of Appeal, however, took a different view and dismissed the claims. It argued that the clause in the original sale contract, which imposes the full commission burden on the tenant, contradicts the principles of the statutory 50–50 split rule. It was apparent to all parties from the outset that tenants with a right of pre-emption were consumers and that, under applicable law, a full obligation to pay commission cannot validly be imposed on them. Such a clause must therefore be classified as an unusually high commission and has no binding effect.
What’s still to be sorted out?
The Kammergericht expressly left open the question of whether Sections 656c and 656d of the German Civil Code (BGB) apply to this case, either directly or by analogy. This question of principle will now have to be resolved by the Federal Court of Justice.
Why is this important for tenants and homebuyers?
The ruling will have significant practical implications. In major cities such as Berlin, Hamburg and Munich, blocks of flats are sold on a regular basis, and tenants frequently exercise their right of first refusal. Whether they are liable to pay the full estate agent’s commission or only half of it can quickly amount to a difference of several thousand euros when property prices are in the six-figure range.
Tenants who have exercised their right of first refusal, or who are planning to do so, and who are faced with a claim for commission should await the Federal Court of Justice’s ruling and seek legal advice. The court is due to rule on the matter on 19 November 2026.
Source: BGH press releases
This post and the accompanying image were created with the help of AI and have been editorially reviewed.
