After much to-ing and fro-ing, and a fairly lengthy passage through Parliament, the eagerly awaited amendment to the Maklergesetz will enter into force on 1 July 2023. The amendment in the part of the law dedicated to Immobilienmakler (= realtor/estate agent) will see a change regarding who pays for the Immobilienmakler when renting residential property. Previously the tenant always paid the fee for the estate agent, even if the landlord had instructed the agent.
The change now means that it is the party who engages the agent who pays their fee, rather than automatically the purchaser/tenant. This is known as the Bestellerprinzip.
Under this principle, if an owner/landlord instructs the agent, they will have to pay the commission in relation to the successful rental of the property. In turn, a prospective property seeker now only pays if they themselves first instruct the agent to find them a property.
No commission for connected agents and landlords…
In addition, the prospective tenant is also not bound to pay a commission fee to the agent, even if they instruct the agent in the event of a landlord or property manager having a direct or indirect interest in the agent’s company, or a company associated with it, or is able to exercise influence over this company, whether directly or through directors or other significant individuals.
The same applies the other way round – i.e. where the estate agent holds a direct or indirect interest in the landlord’s or manager’s company or in a company associated with it or can exercise influence over this company (either directly or through directors or other significant individuals).
Similarly, if the landlord or property manager refrains from concluding an agreement instructing the agent, with the effect that the prospective tenant becomes liable to pay commission, the perspective tenant does not have to pay the commission. Another situation where an exemption applies is where the agent advertises a flat to be let with the consent of the landlord or otherwise advertises it at least to a restricted group of interested parties.
Agents are required to record every agreement for acting as an agent for a residential tenancy/rentail agreement in writing or on another durable medium, and it must be dated. To assert their claim for commission they are also required to prove to the prospective tenant that the exemption cases mentioned above don’t apply.
Under some circumstances the agreement with the Makler may become null and void
The agreement with the agent becomes null and void in the case that it obliges the prospective tenant to pay a commission or other contribution in relation to the residential rental agreement to the real estate agent who is not entitled to commission or to the landlord.
Equally it also becomes null and void if it obliges the prospective tenant to make any contribution in relation to the brokerage/conclusion of a residential tenancy/rental agreement where such terms don’t apply to the former tenant or to another prospective tenant.
Commission still due if employer uses Makler for arranging staff housing
An exemption from this new rule exists for an employer being the tenant and providing its employees with a flat either in service, in kind or for work.
Fines of up to EUR 3,600
Some penalties exist under Article 27 of the Rental Act (MRG; Mietrechtsgesetz), but the new amendment adds a few additional administrative penalty offences. These cover the landlord or agent demanding a payment in contravention with the terms of the amendment (a fine of up to EUR 3,600) or for the agent failing to record an agreement in writing (a fine of up to EUR 1,500).