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Real estate agents are the "hinges" of the real estate industry. They bring the parties together. This task is both challenging and lucrative. We support real estate agents or their clients in asserting their interests. Our expertise ranges from real estate transactions and the drafting of real estate agent agreements to any individual questions in the field of real estate agents law.
Real estate agents must pay attention to their legal safeguards. Clients of real estate agents must know what they can expect from them. JR advises both real estate agents and clients.
Real estate agent contracts can be very complex, especially when the real estate agent's services are linked to components of success. The exact, precise and in the end legally secure enforcement of such interests is the focus of our consulting.
By means of a real estate agent agreement, the real estate agent undertakes to provide evidence and/or act as an intermediary. In case of success, the client commits himself to pay the real estate agent's commission (fee). The subject of such contracts can be real estate, commercial areas and apartments. The real estate agent law is defined in §§ 652 ff. BGB. However, since the legislator has only made a few regulations there concerning the real estate agent´s fee, the real estate agent law is to a considerable extent judicial law. Due to the dynamic development of real estate agent law as a result of new court decisions, legal advice is essential for a legally secure use.
If broker and broker client conclude a contract on the performance of a proof broker's activity, the broker only owes the naming of interested parties and the possibility of bringing about the conclusion of a contract between broker client and an interested party. The broker's proof owed comprises a concrete object as well as the name and address of potential contractual partners. The actual brokerage of a contract conclusion is not part of the brokerage service owed.
This is different within the scope of the activity of a broker. The broker owes the facilitation of contract negotiations between broker client and potential contractual partner. Furthermore, he acts in the interest of the broker client and his wish to conclude a contract with the prospective client.
Which kind of brokerage is finally owed and when the broker is entitled to his brokerage fee depends on the wording of the brokerage contract. These should correspond to the interests of the parties in order to avoid later disputes. JR advises in order to ensure that the contract is legally sound.
If the parties conclude a general agreement, the broker may or may not act. The broker's client may also engage other brokers or act on his own. If the broker client acts as an agent himself, no broker's commission is due. This commission is only due if the broker is causally involved in the conclusion of the contract. The general order is recommended if the property is in high demand, as there is always the possibility to avoid the broker's commission by acting as an agent.
For the broker such a general order is rather unpopular due to the uncertain broker's commission. For the broker this regularly means a race against time.
With the sole mandate, the commissioned broker acts exclusively. The broker's customer may also search for interested parties himself. The broker's commission is only due if the broker is causally involved in the conclusion of the contract. Exclusive commissions are regularly concluded with a term of three to six months. We have already reported on the effectiveness of an automatic extension of an exclusive contract in our JR-Blog. Due to the exclusivity of the brokerage contract, the chances of success are higher than with the general contract. The broker has a higher incentive to find an interested party in order to receive the broker's commission.
Finally, there is the qualified exclusive commission. Here, in addition to the already described exclusive contract, the broker's customer has an obligation to refer the matter to the broker. This means that he has to refer interested parties found on his own to the broker. This ensures that the broker receives his commission, but also that he definitely takes action. It is advisable to limit the qualified sole mandate to a concrete time in order to additionally motivate the broker. This type of contract is particularly useful if the broker's customer is under time pressure or the property is difficult to market.
Which type of contract is the right one for you and which legal particularities have to be taken into account in order to conclude a legally secure contract and to avoid later disputes, you will learn from a case-related consultation with JR.
That depends on the concretely concluded brokerage agreement. Contracts that are concluded for an indefinite period can be terminated at any time and without giving reasons.
With fixed-term contracts, termination is not so easy. In order to terminate a fixed-term contract, the person terminating the contract must either adhere to the pre-determined notice periods or give extraordinary notice. A so-called "good cause" is required for extraordinary termination. Whether such an important reason exists cannot be answered in a general way. In this respect, it is essential to consider the individual case and the relevant case law.
Forfeiture means that the broker is not entitled to his broker's commission despite having acted as a broker. In such a case, he has forfeited this commission due to considerable misconduct. When such misconduct leads to a loss of the entitlement to the broker's commission cannot be answered in a general way. In any case, a contractual breach of duty on the part of the broker is not sufficient for this. Case law additionally requires the serious breach of a fiduciary duty by the broker. This can be the case, for example, in the case of a breach of duties of disclosure or the performance of an inadmissible double brokerage.
JR has many years of experience in advising and representing brokers in order to prevent such breaches of duty, which can lead to forfeiture of the claim to the commission. JR also represents broker clients who are exposed to such breaches of duty and advises on the legal defense of unjustified brokerage claims.
JR follows the current case law on brokerage law and regularly publishes specialist articles on it, also on the JR-BLOG.