Reservation fees in real estate broker GTCs not effective
In a judgment of 20 April 2023 (Case No. 1 ZR 113/22), the Federal Supreme Court (BGH) ruled that the obligation of a real estate broker client to pay a reservation fee agreed in general terms and conditions (AGB) is invalid. The decision of the Federal Supreme Court was based on the following facts:
A client concluded a written reservation agreement with a broker. In it, the broker had undertaken to reserve the property exclusively for the client until a fixed date against payment of a reservation fee amounting to 14.37% of the agreed brokerage commission. The client refrained from buying and now demanded repayment of the reservation fee from the broker. The BGH ruled in his favour.
According to the Federal Supreme Court, the present reservation contract was subject to a review of its content under the law on general terms and conditions. It was a provision supplementing the brokerage contract. It was irrelevant that the reservation contract was agreed in the form of a separate contractual document. It was also irrelevant that the brokerage contract did not come into existence later. In any case, the reservation agreement was unreasonably disadvantageous to the broker's client within the meaning of § 307 (1) sentence 1, (2) no. 1 BGB and was therefore invalid. The repayment of the reservation fee was excluded without exception. The reservation contract did not result in any significant advantages for the client, nor did the real estate agent have to provide any monetary consideration. Likewise, the reservation contract was tantamount to an agreement on a commission for the benefit of the real estate agent, irrespective of success. And this - according to the BGH - contradicts the model of the statutory regulation of the brokerage contract. According to this, a commission is only owed if the broker's activity has led to success. None of this was the case here. The broker had to refund the reservation fee to the client.
Author: Dieter Jasper
Düsseldorf, 04 May 2023
