Brokerage fee

Right to a Commission - The right to a commission (also known as the right to a fee) is the right of a real estate agent to receive payment of their compensation when they have successfully brokered a real estate transaction. Since the Law on the Distribution of Brokerage Fees (December 23, 2020), the principle of shared commission applies to residential real estate sales to consumers: If the seller engages the broker, the seller may charge the buyer no more than the same percentage that the seller pays.

Conditions for the Right to Commission

The agent is entitled to commission if three conditions are met:

• Valid Brokerage Agreement: Since December 2020, the brokerage agreement for residential property sales must be concluded in writing (§ 656a BGB) - verbal agreements are invalid
• Brokerage services: The broker must have performed verifiable brokerage or referral activities-merely establishing contact is generally sufficient, as is the identification of a suitable prospective buyer
• Causality: The brokerage activity must have been the cause of the conclusion of the main contract (purchase agreement)-the so-called “causal connection”

If any of these requirements is missing, the claim for commission lapses-even if the broker incurred significant time and costs. Causality may be waived if the buyer was already aware of the property through other means or if an unreasonably long period of time elapsed between the brokerage activity and the conclusion of the contract.

Commission Sharing Since 2020

The law governing the allocation of brokerage costs (Sections 656a-d of the German Civil Code (BGB)) regulates commission sharing in sales contracts for apartments and single-family homes with consumers:

• Seller’s Mandate: If only the seller engages the broker, they may require the buyer to pay up to 50% of the brokerage fee-but only if the seller has already paid their own share
• Buyer’s Mandate: If only the buyer engages the broker, the commission may not be passed on to the seller
• Dual agency: If the real estate agent is commissioned by both parties, they may charge each party no more than the same amount

Forfeiture and Expiration of the Commission Claim

In addition to the three conditions for the commission claim to arise, a commission claim that has already arisen may subsequently lapse or be forfeited. Forfeiture occurs if the broker fails to assert their claim for too long and the client may therefore reasonably expect not to be held liable. The claim may also expire due to breaches of the duty of loyalty by the broker-for example, if they act simultaneously for both the seller and the buyer without disclosing this, or if they unilaterally favor the interests of one party. German brokerage law applies a strict standard for the protection of interests.

Creation and Extinction of the Commission Claim - Overview

Factual Situation	Effect on Commission Claim	Legal Basis
Verbal brokerage agreement (residential property)	Claim does not arise (written form required)	§ 656a BGB
No purchase agreement concluded	Claim does not arise (principle of success)	§ 652 (1) BGB
Lack of causality (buyer was already familiar with the property)	Claim lapses	BGH case law
Dual agency without disclosure	Forfeiture / termination possible	§ 654 BGB by analogy
Claim not asserted > 3 years	Statute of limitations	§ 195 BGB
Buyer pays before proof of seller’s payment	Premature, not due	§ 656c (2) BGB

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that sellers in the Nuremberg metropolitan region carefully review the brokerage agreement: Pay attention to the brokerage fee (typically 3.57% incl. VAT per party in Nuremberg), the term, any exclusive listing rights, and the provisions regarding reimbursement of expenses in the event of failure to sell. Since the 2020 legislative change, it has been customary in the Nuremberg market for sellers and buyers to each bear half of the total commission (3.57% each). If, as a seller, you wish to agree that the buyer will cover the commission, you must have actually paid your own share beforehand-a mere agreement without your own payment is not sufficient. Reputable real estate agents in Nuremberg operate transparently with written contracts and clear agreements regarding commission sharing.

Frequently Asked Questions

When does the commission claim expire?

The commission claim expires after the standard limitation period of three years pursuant to Section 195 of the German Civil Code (BGB)-beginning at the end of the year in which the claim arose (i.e., the year the purchase agreement was notarized). Within this period, the real estate agent must demand payment of the commission or, if necessary, assert the claim in court. In practice, the commission becomes due immediately after notarization and should be paid promptly.

Can I negotiate the brokerage commission?

Yes, the amount of the commission is generally freely negotiable-there is no legally prescribed commission rate. In Nuremberg, the standard total commission is 7.14% including VAT (3.57% each for the buyer and seller). For high-priced properties above 500,000 euros or when the agent represents both parties simultaneously, lower rates are negotiable. Please note: A cheaper agent may invest less in marketing and reach-which can lead to discounts on the sale price that exceed the brokerage fee saved.

Do I have to pay the commission if I don’t complete the purchase?

No, the right to commission only arises upon the conclusion of the main contract-the notarization of the purchase agreement. If no purchase agreement is concluded, the client owes no commission, as the success-based principle of real estate brokerage law applies. Unless, that is, reimbursement of expenses (e.g., for appraisal costs, advertisements) was expressly agreed upon in the brokerage contract-however, this may only be permitted to a limited extent for consumers and must be reasonable.

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