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Starting point of the decision
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The Federal Court of Justice (BGH) had to address the question under which conditions a real estate agent can be held liable for disadvantaging a prospective tenant under the requirements of the General Equal Treatment Act (AGG). The subject matter was the alleged refusal to rent out an apartment or to allow an apartment viewing on the basis of a protected characteristic. It was also decisive whether, and to what extent, an agent can exonerate themselves when acting for third parties in connection with a letting.
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Legal framework: Prohibition of discrimination in the granting of residential space
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Scope of protection of the AGG in the rental context
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The AGG prohibits discrimination, among other things, on grounds of ethnic origin, gender, religion or belief, disability, age, or sexual identity. These requirements can also become relevant in connection with the establishment of a tenancy. Possible claims include, in particular, appropriate compensation if discrimination occurs “because of” a protected characteristic.
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Potential defendants: Landlords and other involved parties
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In disputes, the question regularly arises against whom AGG claims can be directed. In addition to the landlord, an engaged agent may also come into focus if they are involved in the initiation process and the challenged conduct is attributable to their area of responsibility. In this context, the BGH addressed the requirements for the agent’s own responsibility.
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Key statements of the BGH on the agent’s responsibility
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Own conduct and attribution in the initiation process
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According to the decision, what matters is whether the agent is to be blamed for an act of discrimination of their own, or whether they merely convey statements or specifications of the landlord without any decision-making discretion of their own. The BGH emphasized the importance of the agent’s actual appearance in dealings with third parties: Anyone who is outwardly involved in selection and communication processes with prospective tenants can, under the statutory requirements, themselves be a defendant.
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Exoneration not solely by referring to “instructions”
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The question of whether an agent is freed from being held liable solely by pointing to the landlord’s instructions was central. In this respect, the BGH clarified that it depends on the agent’s specific role and the external effect of their actions. Decisive is whether the complained-of discrimination is to be qualified as the agent’s own conduct within the framework of contract negotiations.
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Indicative evidence, standard of proof, and burden of substantiation
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Indicative effect and secondary burden of pleading
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In alleged discrimination cases, the AGG’s indicative-evidence rule plays an essential role: If indicia are presented that give rise to a presumption of discrimination because of a protected characteristic, it is for the opposing party to rebut this presumption. In constellations involving an agent, this can be of practical significance because communication, selection criteria, and procedures are often organized by the agent.
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Significance of documented communication
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The decision underscores the relevance of the actual circumstances of the individual case, in particular the specific communication in the run-up to a possible viewing or rental. The content, timing, and context of statements as well as outwardly recognizable selection mechanisms can be formative for the legal assessment.
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Classification for the practice of real estate brokerage
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Agents as independent addressees of AGG obligations
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The decision makes clear that real estate agents in the initiation process are not to be regarded exclusively as “neutral intermediaries.” Depending on how the activity and the outward appearance are structured, independent responsibility may be considered. This brings to the fore the question of how prospective-tenant selection processes are designed and what role the agent actually assumes in them.
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Differentiation by function and actual influence
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For the legal classification, what is decisive is not solely the contractual structure in the internal relationship, but the specific scope for action and the outward appearance. The BGH therefore adopts a functional approach: Anyone who applies or communicates discriminatory criteria may be liable under the requirements of the AGG.
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Concluding remark
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The BGH’s decision shows that allegations of discrimination in the context of residential letting mediation do not have to concern only the landlord, but—depending on role and conduct—may also extend to the engaged agent. If legal questions arise in connection with letting processes, selection decisions, or communication with prospective tenants, an assessment of risks and responsibilities may be appropriate. MTR Legal provides support in this regard in the context of legal advice in real estate law.
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