(2022)
How should the estate agent's commission for landlords be assessed?
Under previous regulations, the landlord could hire an estate agent, but the estate agent's commission of up to two months' net rent plus VAT always had to be paid by the future tenant. These costs were in addition to the often already high rent and the rental deposit for the new tenancy.
Currently, the "Mietrechtsnovellierungsgesetz (MietNovG)" of 21 April 2015 stipulates that from 1 June 2015, the so-called client-pays principle applies: whoever hires the estate agent must also pay them. Under the new regulation, it is generally not the tenants but the landlords who bear the estate agent's fees.
The landlord can deduct the paid estate agent's commission as income-related expenses from rental income. The "Gesetz zur Regelung der Wohnungsvermittlung (WoVermRG)" now states:
If the landlord hires an estate agent to find a suitable tenant, the tenant is under no circumstances obliged to pay the commission. Agreements to transfer the payment obligation for the estate agent's fee to the tenant are invalid. Violations by housing agents against the prohibition to demand a fee from the house hunter can be prosecuted with fines.
Housing brokerage contracts must be concluded in text form (e.g. email) to be valid. This is to avoid any uncertainties regarding the conclusion of the contract from the outset. If a brokerage contract is not concluded in text form, the contract is void in accordance with § 125 sentence 1 BGB.
Estate agent contracts between a house hunter and the estate agent are only concluded if the estate agent procures the property solely because of the contract with the house hunter, for which the tenancy agreement is ultimately concluded.
The house hunter who contacts the agent in response to a property advertisement can no longer be obliged to pay. Under the new legal situation, an estate agent only acts in the interest of a house hunter if they search for the house hunter and the property exclusively for them and in their interest. Only then is the house hunter the "client".
Circumvention transactions that would result in the landlord initially paying the brokerage fee but then passing the costs back onto the house hunter in another way are expressly prohibited.
It is clarified that a contractual transfer of costs to the house hunter is invalid (§ 2 para. 5 no. 2 WoVermRG). In addition, § 4a para. 2 sentence 2 WoVermRG already prevents the tenant protection regulations from being circumvented, for example through excessive compensation payments for provided fixtures or furniture.
