When ten\u00adants buy their flat by exer\u00adcis\u00ading a sta\u00adtu\u00adto\u00adry right of pre-emp\u00adti\u00adon, an important ques\u00adti\u00adon ari\u00adses: can they then be obli\u00adged to bear the enti\u00adre estate agent\u2019s com\u00admis\u00adsi\u00adon on their own? This is pre\u00adcis\u00ade\u00adly the issue to be heard by the Fede\u00adral Court of Jus\u00adti\u00adce on 19 Novem\u00adber 2026 in two cases (Case Nos. I ZR 116\/26 and I ZR 117\/26).<\/p>\n
In both cases, an estate agen\u00adcy had assis\u00adted a housing asso\u00adcia\u00adti\u00adon with the purcha\u00adse of a block of flats. The con\u00adtract of sale bet\u00adween the estate agent and the housing asso\u00adcia\u00adti\u00adon sti\u00adpu\u00adla\u00adted that the purcha\u00adser would pay the estate agent\u2019s com\u00admis\u00adsi\u00adon in full and that this obli\u00adga\u00adti\u00adon would pass to the rele\u00advant ten\u00adant in the event of the exer\u00adcise of ten\u00adants\u2019 pre-emp\u00adti\u00adon rights.<\/p>\n
Seve\u00adral ten\u00adants exer\u00adcis\u00aded their sta\u00adtu\u00adto\u00adry right of pre-emp\u00adti\u00adon and purcha\u00adsed their flats. The estate agen\u00adcy sub\u00adse\u00adquent\u00adly deman\u00added the full com\u00admis\u00adsi\u00adon from them. The ten\u00adants refu\u00adsed, citing the sta\u00adtu\u00adto\u00adry prin\u00adci\u00adple of equal division.<\/p>\n
Sin\u00adce 2020, Sec\u00adtions 656c and 656d of the Civil Code have sti\u00adpu\u00adla\u00adted that, when purcha\u00adsing a flat or a detached house, the estate agent\u2019s com\u00admis\u00adsi\u00adon must be split equal\u00adly bet\u00adween the buy\u00ader and the sel\u00adler, pro\u00advi\u00added that both par\u00adties are to be obli\u00adged to pay. An agree\u00adment that obli\u00adges only the buy\u00ader to pay the full amount is, in prin\u00adci\u00adple, inva\u00adlid. This pro\u00adtec\u00adtion appli\u00ades in par\u00adti\u00adcu\u00adlar to consumers.<\/p>\n
The Ber\u00adlin Regio\u00adnal Court initi\u00adal\u00adly ruled in favour of the estate agen\u00adcy and orde\u00adred the ten\u00adants to pay. The Ber\u00adlin Court of Appeal, howe\u00adver, took a dif\u00adfe\u00adrent view and dis\u00admissed the claims. It argued that the clau\u00adse in the ori\u00adgi\u00adnal sale con\u00adtract, which impo\u00adses the full com\u00admis\u00adsi\u00adon bur\u00adden on the ten\u00adant, con\u00adtra\u00addicts the prin\u00adci\u00adples of the sta\u00adtu\u00adto\u00adry 50\u201350 split rule. It was appa\u00adrent to all par\u00adties from the out\u00adset that ten\u00adants with a right of pre-emp\u00adti\u00adon were con\u00adsu\u00admers and that, under appli\u00adca\u00adble law, a full obli\u00adga\u00adti\u00adon to pay com\u00admis\u00adsi\u00adon can\u00adnot valid\u00adly be impo\u00adsed on them. Such a clau\u00adse must the\u00adr\u00ade\u00adfo\u00adre be clas\u00adsi\u00adfied as an unu\u00adsual\u00adly high com\u00admis\u00adsi\u00adon and has no bin\u00adding effect.<\/p>\n
The Kam\u00admer\u00adge\u00adricht express\u00adly left open the ques\u00adti\u00adon of whe\u00adther Sec\u00adtions 656c and 656d of the Ger\u00adman Civil Code (BGB) app\u00adly to this case, eit\u00adher direct\u00adly or by ana\u00adlo\u00adgy. This ques\u00adti\u00adon of prin\u00adci\u00adple will now have to be resol\u00adved by the Fede\u00adral Court of Justice.<\/p>\n
The ruling will have signi\u00adfi\u00adcant prac\u00adti\u00adcal impli\u00adca\u00adti\u00adons. In major cities such as Ber\u00adlin, Ham\u00adburg and Munich, blocks of flats are sold on a regu\u00adlar basis, and ten\u00adants fre\u00adquent\u00adly exer\u00adcise their right of first refu\u00adsal. Whe\u00adther they are lia\u00adble to pay the full estate agent\u2019s com\u00admis\u00adsi\u00adon or only half of it can quick\u00adly amount to a dif\u00adfe\u00adrence of seve\u00adral thousand euros when pro\u00adper\u00adty pri\u00adces are in the six-figu\u00adre range.<\/p>\n
Ten\u00adants who have exer\u00adcis\u00aded their right of first refu\u00adsal, or who are plan\u00adning to do so, and who are faced with a cla\u00adim for com\u00admis\u00adsi\u00adon should await the Fede\u00adral Court of Justice\u2019s ruling and seek legal advice. The court is due to rule on the mat\u00adter on 19 Novem\u00adber 2026.<\/p>\n