In our article of November 27, 2020, we had reported on the then imminent change in brokerage law in the brokerage of sales contracts for apartments and single-family houses. At the end of 2020, the legislator had introduced the so-called half-share principle into the brokerage law. This is a consumer protection provision. If the buyer acquires an apartment or a single-family house and the broker has both parties involved in the purchase agreement promise him a brokerage fee. This can only be done if both parties commit themselves to the same amount (Section 656c (1) sentence 1 BGB). Any agreement to the contrary is invalid (Section 656ca (2) BGB). Thus, the seller and the buyer shall bear half of the broker's fee.
Single-family houses in brokerage law
Difficulties in the practicality of the legislation
This regulation has been applied in practice for just under a year. Unfortunately, it has turned out that sellers and brokers repeatedly try to circumvent this regulation. This happens in such a way that, for example, larger houses that are used as single-family houses are suddenly offered as two-family houses and later also sold as such. In this case, the broker then demands the full brokerage fee from the buyer (usually after consultation with the seller).
Buyers, who are consumers, are surprised and object that according to the new regulations, the buyer and the seller have to share the brokerage fee. This is done in such a way that the broker can only demand half of the brokerage fee from the buyer if he can prove that the seller has also already paid half of the brokerage fee.
And then the difficulties in the practicality of this legislation arise: The brokers argue that the house was offered as a two-family house and justify that they do not have to provide proof of payment by the seller to the buyer. They alone - according to the brokers - must pay the agreed upon brokerage fee. Brokers are inventive in their argumentation. They refer to the submitted Exposé, to former building permit documents, etc.. The buyers on the other hand, argue that the house has been used as a single-family home throughout the entire period. In addition, one could not recognize on the basis of the layout of the rooms, the connections for water and electricity that this was a two-family house. In any case, the entire house had been used as a single-family house for the last 20 or 30 years.
Which is correct? Is it a single-family house or a two-family house?
For the affirmation of a single-family dwelling, some people rely on the fact that a building with the associated property must primarily meet the residential needs of a family (cf. Palandt, Bürgerliches Gesetzbuch, 80th ed. 2021, § 656a Rdnr. 3 with reference to the Federal Court of Justice). The overall layout of the property for this purpose is decisive. Therefore, extensive ancillary rooms (cellars, extensions, sheds, larger garages, etc.) may also be present in the building or on the property. It is even stated that subordinate commercial or professional uses or the presence of a granny annexe do not harm the cause in general. By their very nature, apartment buildings or houses with predominantly commercial premises are not to be qualified as single-family houses.
Others, on the other hand, focus solely on the purpose of acquisition (Fischer, Maklerrecht, 6th ed.). They state that a single-family house also exists, for example, if a large building that was previously used as a multi-family house is now only to be used by one family.
Judicial decisions regarding the issue
A look at the case law does not help out much either. To the best of our knowledge, there have not yet been any decisions by the highest courts on this subject. Therefore, every buyer should clarify in advance with the broker and the seller exactly on which basis one comes together when concluding such a brokerage contract. In this context, it is unfortunately often observed that buyers do not dare to make such a clarification in order not to lose the coveted object. This dilemma cannot be resolved so easily. From a lawyer's point of view, however, it is highly advisable to ask the right questions in advance in order to avoid lengthy and costly disputes later on. We are happy to help you in these matters.
Author: Lawyer Dr. D. Jasper, Düsseldorf
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