Pro\u00adper\u00adty manage\u00adment com\u00adpa\u00adnies that also act as estate agents for\u00adfeit their entit\u00adle\u00adment to com\u00admis\u00adsi\u00adon. The Fede\u00adral Court of Jus\u00adti\u00adce cla\u00adri\u00adfied this in a jud\u00adge\u00adment dated 21 May 2026 (BGH, Case No. I ZR 224\/25). The ruling appli\u00ades not only to com\u00admis\u00adsi\u00adons paid by ten\u00adants, but also, expli\u00adcit\u00adly, to tho\u00adse paid by land\u00adlords to the pro\u00adper\u00adty manager.<\/p>\n\n\n\n
A pro\u00adper\u00adty owner had trans\u00adfer\u00adred around 129 resi\u00adden\u00adti\u00adal units to a pro\u00adper\u00adty manage\u00adment com\u00adpa\u00adny. The manage\u00adment con\u00adtract sti\u00adpu\u00adla\u00adted that the manage\u00adment com\u00adpa\u00adny was also to find new ten\u00adants and, in return, recei\u00adve a com\u00admis\u00adsi\u00adon of two months\u2019 basic rent for each new ten\u00adan\u00adcy, cap\u00adped at 10,000 euros per year. Over the cour\u00adse of three years, 13 flats were let to new ten\u00adants, and the owner paid a total of around 16,800 euros in com\u00admis\u00adsi\u00adon. Upon the contract\u2019s expiry, she deman\u00added the money back.<\/p>\n\n\n\n
Whilst the Kre\u00adfeld Regio\u00adnal Court (jud\u00adge\u00adment of 22 May 2024, ref. 7 O 15\/24) still rejec\u00adted the cla\u00adim for repay\u00adment, the D\u00fcs\u00adsel\u00addorf Hig\u00adher Regio\u00adnal Court (jud\u00adge\u00adment of 24 Octo\u00adber 2025, Case No. 7 U 101\/24) and, final\u00adly, the Fede\u00adral Court of Jus\u00adti\u00adce (BGH) ruled in favour of the owner.<\/p>\n\n\n\n
The Housing Agen\u00adcy Act (WoVer\u00admittG) is the rele\u00advant legis\u00adla\u00adti\u00adon. Sec\u00adtion 2(2), first sen\u00adtence, point 2 of this Act excludes any entit\u00adle\u00adment to com\u00admis\u00adsi\u00adon if the housing agent is also the pro\u00adper\u00adty mana\u00adger. Until the Fede\u00adral Court of Jus\u00adti\u00adce (BGH) ruling, it was dis\u00adpu\u00adted whe\u00adther this pro\u00adhi\u00adbi\u00adti\u00adon appli\u00aded only to ten\u00adants or also to landlords.<\/p>\n\n\n\n
The Fede\u00adral Court of Jus\u00adti\u00adce has now taken a clear stance: as the pro\u00advi\u00adsi\u00adon does not express\u00adly refer to the con\u00adcept of a per\u00adson see\u00adking accom\u00admo\u00adda\u00adti\u00adon, it is deli\u00adbera\u00adte\u00adly worded in broa\u00adder terms. The court jus\u00adti\u00adfies this on the grounds that, from an eco\u00adno\u00admic per\u00adspec\u00adti\u00adve, a land\u00adlord could pass on the agen\u00adcy fees to the ten\u00adant via the rent. This would mean that the ten\u00adant would, after all, bear the cost of the com\u00admis\u00adsi\u00adon indi\u00adrect\u00adly \u2013 which is pre\u00adcis\u00ade\u00adly what the legis\u00adla\u00adtu\u00adre sought to prevent.<\/p>\n\n\n\n
For pro\u00adper\u00adty manage\u00adment com\u00adpa\u00adnies that have hither\u00adto recei\u00adved com\u00admis\u00adsi\u00adons for bro\u00adke\u00adring flats from their port\u00adfo\u00adlio, the con\u00adse\u00adquen\u00adces are signi\u00adfi\u00adcant. Com\u00admis\u00adsi\u00adons alre\u00ada\u00addy paid may be reclai\u00admed, with retroac\u00adti\u00adve effect within the sta\u00adtu\u00adto\u00adry limi\u00adta\u00adti\u00adon peri\u00adod. This peri\u00adod is three years, cal\u00adcu\u00adla\u00adted from the end of the year in which the cla\u00adim aro\u00adse and the land\u00adlord was awa\u00adre of it or could have been awa\u00adre of it.<\/p>\n\n\n\n
In the case of lar\u00adge pro\u00adper\u00adty port\u00adfo\u00adli\u00ados with regu\u00adlar new let\u00adtings, this can quick\u00adly result in five- or six-figu\u00adre reco\u00advery amounts.<\/p>\n\n\n\n
Accor\u00adding to estab\u00adlished case law of the Fede\u00adral Court of Jus\u00adti\u00adce (BGH), anyo\u00adne who mana\u00adges sole\u00adly the com\u00admon pro\u00adper\u00adty of a flat owners\u2019 asso\u00adcia\u00adti\u00adon is not regard\u00aded as the mana\u00adger of the indi\u00advi\u00addu\u00adal flats. Such flat owners\u2019 asso\u00adcia\u00adti\u00adon mana\u00adgers may, in prin\u00adci\u00adple, con\u00adti\u00adnue to char\u00adge a com\u00admis\u00adsi\u00adon for bro\u00adke\u00adring the sale of flats within their deve\u00adlo\u00adp\u00adment. Howe\u00adver, the pre\u00adcise con\u00adtrac\u00adtu\u00adal arran\u00adge\u00adments in each indi\u00advi\u00addu\u00adal case are also decisi\u00adve here.<\/p>\n\n\n\n
Accor\u00adding to the Fede\u00adral Court of Jus\u00adti\u00adce (BGH), anyo\u00adne who attempts to cir\u00adcum\u00advent the ban on com\u00admis\u00adsi\u00adons by incre\u00adasing the administrator\u2019s ongo\u00ading remu\u00adne\u00adra\u00adti\u00adon or by out\u00adsour\u00adcing bro\u00adkera\u00adge acti\u00advi\u00adties to a sub\u00adsi\u00addia\u00adry will fall into the next trap. The law express\u00adly covers eco\u00adno\u00admic\u00adal\u00adly inter\u00adlin\u00adked com\u00adpa\u00adnies as well, and hid\u00adden com\u00admis\u00adsi\u00adon agree\u00adments are inva\u00adlid in their entirety.<\/p>\n\n\n\n
Exis\u00adting pro\u00adper\u00adty manage\u00adment con\u00adtracts con\u00adtai\u00adning com\u00admis\u00adsi\u00adon clau\u00adses for new ten\u00adan\u00adci\u00ades should be review\u00aded as a mat\u00adter of urgen\u00adcy and, whe\u00adre neces\u00adsa\u00adry, ren\u00adego\u00adtia\u00adted. This requi\u00adres a deli\u00adca\u00adte touch, as rai\u00adsing the issue open\u00adly with land\u00adlords may be the first time they beco\u00adme awa\u00adre of poten\u00adti\u00adal claims for repay\u00adment. Anyo\u00adne wis\u00adhing to err on the side of cau\u00adti\u00adon should seek legal advice.<\/p>\n\n\n\n