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Federal Court of Justice: No reser­vation fee for brokers

20. September 2023

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.