In its ruling of 20 April 2023 – I ZR 113/22, the Bundesgerichtshof (BGH) rejects the practice among real estate agents of charging reservation fees irrespective of success.
In the past, some real estate agents in Germany offered interested clients the possibility to reserve a property for a certain period of time by paying a fee. The BGH now ruled that the agreement of such a reservation fee in general terms and conditions is invalid. In the underlying case, the plaintiffs had concluded a brokerage contract with the defendant, a real estate agent. To reserve a property, the parties also concluded a reservation agreement which provided for the payment of a reservation fee. The plaintiffs later decided not to purchase the land and subsequently demanded the fee back from the real estate agent. However, the defendant refused to repay the fee, citing the general terms and conditions.
The judges of the I. Civil Senate now decided that a clause which excludes the repayment of the reservation fee without exception constitutes an unreasonable disadvantage for the potential buyers and is therefore invalid. They justified this by stating that the prospective buyer does not gain any significant advantages from the conclusion of the reservation contract and that, moreover, the real estate agent does not provide any consideration of monetary value in this context. The reservation fee thus contradicts the guiding principle of the statutory regulation of the brokerage contract, according to which a commission is only owed if the brokerage activity has led to success.
Consequences of the ruling:
Broker clients who have paid a reservation fee to their real estate agent on the basis of a form-based agreement can now claim it back on the basis of this BGH ruling. We will be happy to assist you in reclaiming reservation fees. If you have any questions on this topic, please do not hesitate to contact us!