In the case at hand, the potential buyers of a property had paid a reservation fee in the amount of €4,200 and demanded its repayment after they had refrained from purchasing the property. The Federal Court of Justice examined the legality of this fee in the context of a reservation contract and reached a landmark judgment (judgment of April 20, 2023 — I ZR 113/22): The court namely ruled that the reservation fee was not justified in this case and that the plaintiffs were entitled to reimbursement.
What is the case about: Reservation contract with the real estate agent?
This case involves a legal dispute between the plaintiffs and the defendant, a real estate broker. The plaintiffs had entered into a brokerage contract with the defendant. As a result of this contract, the defendant showed the plaintiffs a plot of land with a single-family house, for which a brokerage commission was agreed in the amount.
For this purpose, the parties concluded a “reservation contract” in which they agreed to reserve the property at a purchase price of €420,000. The reservation agreement stipulated that a reservation fee of €4,200 was to be paid, which would be credited against the broker’s commission in the event of a purchase agreement being concluded. The reservation fee was not to be refunded if the purchase agreement did not materialize.
The plaintiffs paid the reservation fee. Since they had difficulty securing financing for the purchase of the land, they informed the defendant that they wished to refrain from purchasing the land. The defendant refused to repay the reservation fee, which led to a claim by the plaintiffs for payment of €4,200.
How did the court decide: Ineffective GTC.
The court decided that the reservation contract is subject to the content control after § 307 BGB, explains attorney Sascha C. Fürstenow. It was stated that the reservation contract is a general business condition (AGB), which was put by the deplored one as Verwenderin to the plaintiffs. It was argued that the reservation agreement was not an independent agreement, but a provision supplementing the brokerage agreement.
The court found that the reservation fee agreed to in the reservation agreement unreasonably disadvantaged the plaintiffs. The fee was non-refundable even if the purchase agreement fell through due to circumstances not attributable to the plaintiffs. This was contrary to the principles of good faith. The plaintiffs paid the fee without any certainty that they would actually be able to purchase the property and received only limited benefits in return.
In addition, the court viewed the reservation fee as a type of non-performance-based commission, which is considered invalid in general terms and conditions in favor of brokers. This practice put the plaintiffs at a considerable disadvantage and was therefore unacceptable.
Conclusion: Broker is not entitled to a reservation fee
The court ruled that the reservation contract between the plaintiffs and the defendant was invalid. The reservation fee, which was agreed in the contract, unreasonably disadvantaged the plaintiffs because it was non-refundable and became due even if the purchase agreement fell through for reasons not attributable to the plaintiffs. This practice violated the principles of good faith and was considered a non-performance-related (partial) commission, which is not permissible in general terms and conditions.
Attorney Sascha C Fürstenow is happy to advise brokers, real estate buyers and real estate sellers on this topic.