Definition and Legal Basis of the Bestellerprinzip
Das Bestellerprinzip is a legal term primarily used in German tenancy law in connection with the letting of residential property through real estate agents. It regulates who is obliged to pay the agent’s fee when renting residential property. In principle, the Bestellerprinzip stipulates that the party who commissions the agent is required to pay the brokerage commission. The statutory basis for the Bestellerprinzip has existed since 1 June 2015 in Sections 2 para. 1a, 3 para. 2 of the Act on the Brokerage of Apartments (WoVermRG) as well as supplementary provisions in the German Civil Code (BGB).
Development and Objectives of the Bestellerprinzip
Background and Legal Amendment 2015
Before the introduction of the Bestellerprinzip, landlords and agents could often unilaterally pass the agent’s commission onto apartment seekers, even though the initiative to conclude the contract usually originated from the landlord. The 2015 legislative amendment was designed to stop this practice and create more fairness in the rental housing market. Apartment seekers were thus to be financially relieved.
The Bestellerprinzip came into effect with the Act Regulating the Brokerage of Apartments on 1 June 2015. Since then, it is no longer permissible for the agent’s commission to be paid by apartment seekers contrary to the landlord’s commissioning of the agent.
Objective
The primary protective objectives of the Bestellerprinzip are:
- Protection of prospective tenants from unreasonable brokerage costs
- Strengthening transparency in the rental market
- Prevention of circumvention transactions and abuse
Scope of Application of the Bestellerprinzip
Material Scope of Application
The Bestellerprinzip applies exclusively to the brokerage of tenancy agreements for residential premises. It therefore covers rental, but not the sale of real estate. The principle also does not apply to the letting of commercial properties or holiday apartments.
Personal Scope of Application
The addressees of the Bestellerprinzip are landlords as clients of the agent and potential tenants as possible clients. The law draws a strict distinction as to who has commissioned the agent to broker the lease.
Territorial Scope of Application
The regulation of the Bestellerprinzip applies throughout the Federal Republic of Germany. Other countries may have different rules regarding the payment of commissions.
Legal Structure of the Bestellerprinzip
Statutory Regulation (§ 2 para. 1a WoVermittG)
According to § 2 para. 1a of the Act on the Brokerage of Apartments, an agent may only demand a commission from apartment seekers for the brokerage of residential premises if a rental agreement is concluded solely on the basis of the prospective tenant’s search request. If the brokerage contract is concluded at the initiative of the landlord, the agent is not permitted to claim commission from the tenant.
Prohibition of Circumvention under § 3 para. 2 WoVermittG
The law explicitly prohibits circumvention transactions. Any agreement that circumvents or undermines the prohibition on commission is void. This includes arrangements such as bogus search requests from prospective tenants or the collection of excessive transfer payments.
Amount of Broker’s Commission for a Valid Mandate
If the Bestellerprinzip applies in favor of the tenant side, the broker’s fee may not exceed two net base monthly rents plus VAT (§ 3 para. 2 WoVermittG).
Exceptions and Special Provisions
Dual Mandate Brokerage
In the case of a genuine dual mandate by both parties (tenant and landlord), the obligation to pay commission must be carefully examined. The legislature has set high standards here for proving that the agent actually acted solely on the instruction of the tenant.
Graduated rent, indexed rent, and other types of contracts
The Bestellerprinzip applies regardless of the agreed tenancy contract form, whether it is a fixed-term contract, graduated rent, or indexed rent. Here too, only the party commissioning the agent is decisive.
Case Law and Controversies
Permissible Arrangements
The courts have declared various evasion attempts to be inadmissible, including:
- Agreements regarding bogus search requests by prospective tenants
- Passing on broker costs to the rent or ancillary charges
- Third parties who ‘take over’ the search request on behalf of the landlord
Consequences of Violating the Bestellerprinzip
Any agreement that violates the Bestellerprinzip is void. Tenants can reclaim any excess commission paid. In addition, fines may be imposed pursuant to § 8 WoVermittG.
Distinction from the Buyer Commission Principle
In the field of real estate sales in 2020 the so-called buyer commission principle was established (§ 656a et seq. BGB). Although similar in substance, it is regulated separately by law. For sales, the seller must bear at least half of any agreed commission if the agent represents both parties.
Significance and Effects of the Bestellerprinzip
The Bestellerprinzip has significantly contributed to the financial relief of apartment seekers. It influences the practices of housing brokerage and particularly the business model of real estate agents. There is some debate as to whether the principle may result in costs being shifted to the base rent. Empirical studies to date indicate that the effect is predominantly beneficial for prospective tenants.
Literature and Further Legal Sources
- Act on the Brokerage of Apartments (WoVermRG), in particular § 2 para. 1a, § 3 para. 2
- German Civil Code (BGB), §§ 656a et seq. (Buyer commission principle)
- Federal Law Gazette 2015 Part I No. 14, issued in Bonn on 27 April 2015
- Bundestag Printed Paper 18/3121, Explanatory Memorandum to the Amendment
This article provides a comprehensive overview of the Bestellerprinzip in German tenancy law, explaining the legal background, exceptions, and all application-relevant details including current legal developments.
Frequently Asked Questions
Who pays the broker’s commission when purchasing real estate under the Bestellerprinzip?
With regard to real estate purchases, the Bestellerprinzip in Germany provides that the party who instructs the broker is also responsible for paying the fee (§ 656c, § 656d BGB). In sales law, this means the brokerage agreement must be concluded in text form and the obligation to pay must be clearly assigned. An important legal aspect is that the broker is prohibited from passing on the full commission to the buyer if the broker was commissioned by the seller. The buyer can only be required to pay half of the commission at most, provided this has been agreed transparently and in text form beforehand. This approach is intended to protect buyers from a one-sided financial burden and ensures more fairness in the real estate market. Exceptions are not provided for by law; a contractual deviation in favor of one party is ineffective.
Does the Bestellerprinzip also apply to rental apartments?
The Bestellerprinzip was originally introduced for the rental housing market (§ 2 para. 1a Act on the Brokerage of Apartments – WoVermittG). Here, only the party who commissions the broker (usually the landlord) must pay the fee. Brokers are prohibited from demanding a commission from the tenant unless acting expressly on behalf of the tenant. Circumventing the law, for example through fictitious search requests or sham contracts between the broker and the tenant, is prohibited pursuant to § 3 WoVermittG and constitutes an administrative offence, which may result in claims for repayment and fines.
What happens if the Bestellerprinzip is violated?
Violations of the Bestellerprinzip are unlawful and may have various legal consequences. The party who paid in error is entitled to reclaim the commission from the broker. This may be enforced either through civil court proceedings or by lodging a consumer complaint with the supervisory authority. Authorities may also impose fines, and affected parties have up to three years after the payment to claim the commission back (§ 195 BGB, § 2a WoVermittG). A violation of the form requirement, for example if the brokerage agreement is not in text form, also renders the commission agreement invalid.
What are the legal requirements for a brokerage agreement?
Since the statutory amendments came into force, brokerage agreements for the purchase of residential properties must be concluded in text form (§ 656a BGB). Text form means that the contract may be sent by email, fax, SMS or delivered in paper form. A handwritten signature is no longer strictly necessary, but there must be a clear and comprehensible text. The agreement must also transparently determine who the client is and what commission has been agreed. If there are deviations or ambiguities benefiting the broker, no valid legal basis exists for claiming the commission.
Can brokers charge further costs to the buyer or tenant?
Under applicable law, brokers are not permitted to pass on further costs to the buyer or tenant beyond the agreed commission, unless these have been expressly and separately agreed. Lump sum administrative or processing fees, telephone costs, viewing costs, or similar are particularly inadmissible. Such practice would violate the Bestellerprinzip and § 307 BGB (control of standard terms and conditions) and could result in claims for repayment.
Are there exceptions to the Bestellerprinzip for certain types of property?
The Bestellerprinzip applies without restriction to rental apartments and, on the sales side, to single-family houses and owner-occupied flats (§ 656b et seq. BGB, § 2 WoVermittG). The only exceptions are commercial properties as well as undeveloped plots or multi-family houses. For such property, brokers and clients are free to negotiate the amount and distribution of the commission; they are not subject to the statutory Bestellerprinzip.
How long can claims for unlawfully charged commission be asserted?
Claims arising from a breach of the Bestellerprinzip, particularly for the repayment of unlawfully charged commission, are subject to the regular civil statute of limitations of three years from the end of the year in which the claim arose (§ 195 BGB). Thus, the period begins at the end of the calendar year in which the commission was paid. Within this period, the claim can be enforced by legal action or through consumer complaints.
