{"id":1645,"date":"2026-10-17T13:55:02","date_gmt":"2026-10-17T11:55:02","guid":{"rendered":"https:\/\/kanzlei-reese.de\/?p=1645"},"modified":"2026-10-17T13:55:02","modified_gmt":"2026-10-17T11:55:02","slug":"knp-127-06c6d7c6ff34","status":"publish","type":"post","link":"https:\/\/kanzlei-reese.de\/en\/knp-127-06c6d7c6ff34\/","title":{"rendered":"Fede\u00adral Court of Jus\u00adti\u00adce: Who pays the estate agent\u2019s com\u00admis\u00adsi\u00adon on a two-fami\u00adly house?"},"content":{"rendered":"

Anyo\u00adne who buys a house and enga\u00adges an estate agent who is also acting on behalf of the sel\u00adler may be fami\u00adli\u00adar with the prin\u00adci\u00adple of 50\u201350 com\u00admis\u00adsi\u00adon split<\/strong>: Sin\u00adce 2020, Sec\u00adtion 656c of the Ger\u00adman Civil Code (BGB) has sti\u00adpu\u00adla\u00adted that the buy\u00ader and sel\u00adler must share the estate agent\u2019s com\u00admis\u00adsi\u00adon equal\u00adly if the estate agent is acting on behalf of both par\u00adties. Howe\u00adver, this rule only appli\u00ades to the purcha\u00adse of a flat or a Detached house<\/strong>. The Fede\u00adral Court of Jus\u00adti\u00adce has now cla\u00adri\u00adfied exact\u00adly when a pro\u00adper\u00adty can be clas\u00adsi\u00adfied as a detached house and when it cannot.<\/p>\n

The case: a two-family house, but intended for the owner\u2019s own use<\/h2>\n

An estate agent had arran\u00adged for a buy\u00ader to purcha\u00adse a pro\u00adper\u00adty that had been adver\u00adti\u00adsed as a let two-fami\u00adly house. At the time the con\u00adtract of sale was con\u00adcluded, both resi\u00adden\u00adti\u00adal units were let to sepa\u00adra\u00adte ten\u00adants. The pro\u00adper\u00adty was also express\u00adly descri\u00adbed as a two-fami\u00adly house in the nota\u00adri\u00adsed con\u00adtract of sale.<\/p>\n

The buy\u00ader only infor\u00admed the estate agent upon con\u00adclu\u00adsi\u00adon of the estate agen\u00adcy agree\u00adment<\/strong> sta\u00adting that he actual\u00adly inten\u00added to use the pro\u00adper\u00adty for his own resi\u00adden\u00adti\u00adal pur\u00adpo\u00adses. He took the view that the com\u00admis\u00adsi\u00adon agree\u00adment was inva\u00adlid becau\u00adse the prin\u00adci\u00adple of equal sha\u00adring set out in Sec\u00adtion 656c of the Ger\u00adman Civil Code (BGB) had not been obser\u00adved. Accor\u00addin\u00adgly, he argued that he should not have been requi\u00adred to bear the full cost of the estate agent\u2019s com\u00admis\u00adsi\u00adon on his own. The Ber\u00adlin Regio\u00adnal Court ruled in favour of the estate agent, and the Ber\u00adlin Court of Appeal upheld the judgement.<\/p>\n

The Federal Court of Justice\u2019s ruling<\/h2>\n

On 16 July 2026, the Fede\u00adral Court of Jus\u00adti\u00adce dis\u00admissed the buyer\u2019s appeal (Case No. I ZR 111\/25). The estate agent\u2019s cla\u00adim to com\u00admis\u00adsi\u00adon is valid. The court jus\u00adti\u00adfied this on the grounds that the pro\u00advi\u00adsi\u00adon regar\u00adding the 50\u201350 split of com\u00admis\u00adsi\u00adon only appli\u00ades if the pro\u00adper\u00adty can objec\u00adtively be clas\u00adsi\u00adfied as a detached house.<\/p>\n

The key fac\u00adtor here is the timing of the Con\u00adclu\u00adsi\u00adon of the con\u00adtract<\/strong>. The decisi\u00adve fac\u00adtor is whe\u00adther, based on its actu\u00adal natu\u00adre, the pro\u00adper\u00adty is reco\u00adg\u00adnis\u00adab\u00adly inten\u00added pri\u00adma\u00adri\u00adly for the resi\u00adden\u00adti\u00adal pur\u00adpo\u00adses of the mem\u00adbers of a sin\u00adgle house\u00adhold<\/strong> ser\u00adves. In the pre\u00adsent case, this was not the case: the buil\u00adding com\u00adpri\u00adsed two equi\u00adva\u00adlent resi\u00adden\u00adti\u00adal units, neither of which was of les\u00adser importance than the other.<\/p>\n

If the natu\u00adre of the pro\u00adper\u00adty does not cle\u00adar\u00adly indi\u00adca\u00adte that it is a detached house, the Fede\u00adral Court of Jus\u00adti\u00adce (BGH) holds that it is up to the buy\u00ader to inform the estate agent of their inten\u00added use at the latest when the con\u00adtract is con\u00adcluded<\/strong> to noti\u00adfy. Anyo\u00adne who does so only after\u00adwards can no lon\u00adger invo\u00adke the prin\u00adci\u00adple of equal divi\u00adsi\u00adon. Sub\u00adse\u00adquent cir\u00adcum\u00ads\u00adtances can\u00adnot, as a gene\u00adral rule, retroac\u00adtively inva\u00adli\u00adda\u00adte a con\u00adtract that has alre\u00ada\u00addy been concluded.<\/p>\n

What does that mean in practice?<\/h2>\n

For pro\u00adper\u00adty buy\u00aders, this ruling pro\u00advi\u00addes important gui\u00addance. Anyo\u00adne wis\u00adhing to purcha\u00adse a pro\u00adper\u00adty that is for\u00admal\u00adly clas\u00adsi\u00adfied as, or adver\u00adti\u00adsed as, a two-fami\u00adly house, but is in fact inten\u00added for their own resi\u00adden\u00adti\u00adal use, should take this inten\u00added use into account eit\u00adher befo\u00adre or at the time of con\u00adclu\u00adding the estate agent\u2019s con\u00adtract<\/strong> Com\u00admu\u00adni\u00adca\u00adte cle\u00adar\u00adly. Only then can the sta\u00adtu\u00adto\u00adry pro\u00adtec\u00adtion regar\u00adding the 50\u201350 split of com\u00admis\u00adsi\u00adon take effect.<\/p>\n