As a buyer, do I have to pay commission at all?

With a flat or a single-family house, only if it has been agreed — and at most in the share also borne by the instructing party (section 656d BGB). Your share only falls due once the instructing party has paid and proof of that exists — which either they or the agent may supply.

The agent wants a flat fee for expenses if nothing comes of it. Is that allowed?

That is not commission but a separate agreement, and it must be expressly made. The statutory default is the opposite: no contract, no fee (section 652 BGB). Read carefully what you sign.

Our agent also serves the buyer. Is that allowed?

Yes, in principle. But then they must take the commission from both sides in equal shares (section 656c BGB), and they lose the claim entirely if they favour one side at the expense of the other (section 654 BGB). Ask about it and have it recorded.

Knowledge · Orientation

What an estate agent is paid for — and when they are not.

Since 2020 the law has set out how agency costs are to be shared when a flat or a single-family house is sold. Knowing this makes for calmer negotiation — and shows when something is off.

The answer first. Commission arises only on success (section 652 BGB) — not for effort, not for advertisements, not for time. And anyone who takes payment from both sides may do so only in equal shares (section 656c BGB); anyone who acts in breach of good faith loses the claim entirely (section 654 BGB). A contract concerning a flat or a single-family house also requires at least text form (section 656a BGB) — a spoken promise does not bind you.

In German law the agent’s commission is a success fee. It arises when the contract comes about as a result of the referral or the brokering (section 652 BGB). If no contract comes about, there is no fee — not even if there were months of advertising, viewings and phone calls. That is not a concession; it is the statutory default.

From this follows a question you are entitled to ask: what exactly do I owe if nothing comes about? The right answer is „nothing". Anything that departs from it — flat-rate expenses, advance payment for photographs, reservation fees — is a separate agreement and belongs on the table before signing, not afterwards in an invoice.

Since 23 December 2020 a separate regime applies to the sale of flats and single-family houses to consumers. Where the agent has a commission promised by both sides, that may only happen in such a way that both are bound in equal amount (section 656c BGB) — an unequal split renders the agreements void. What triggers this is the double promise of commission, not dual activity as such. Where they act for one side only and the other is to contribute, that other share may not exceed the share of the instructing party. And the claim against the other side only falls due once the instructing party has paid and they or the agent provide proof of it (section 656d BGB) — in practice the agent usually supplies it.

The purpose is easy to see: previously the seller could give the instruction and the buyer bear the invoice — whoever ordered did not pay, and whoever paid did not order. That imbalance has been removed. The rules do not apply to apartment buildings, plots of land or commercial premises; there the split remains freely negotiable.

An agent may in principle act for both sides. The limit is set by section 654 BGB: anyone who, contrary to the content of the contract, also acts for the other party forfeits the claim to a fee. What is meant is not dual activity as such, but dual activity in breach of good faith — anyone who uses one side’s negotiating position for the other, for instance by passing on their price limit, ends up with no fee at all.

For you as a seller this means, practically: ask whom they are working for. The question is not rude and should not provoke rudeness. A reputable counterpart says without hesitation whether they also serve the buyer and how the costs are split — and puts it in writing.

Text form. For flats and single-family houses the agency contract must be concluded at least in text form (section 656a BGB) — an email suffices, a handshake does not. A spoken promise therefore does not bind you, and no one can derive an invoice from it later.

What it should contain: whom the agent is acting for · how high the commission is and who bears what share of it · exactly when it falls due · whether the instruction is simple or exclusive and how long it runs · what applies if a sale comes from your own circle. Warning signs: payments before anything has happened; a commission said to fall due even without a contract; an exclusive instruction with no end date; pressure to sign „today".

Anyone writing about agency commission while preparing their own licence under section 34c GewO is an interested party. That belongs here and not in the small print. Our licence is in preparation; until it is granted we do not act as agents. And when it is granted, nothing on this page changes: the statutes above are in the law, not in our interest.

What we do today comes before any sale — putting the conversation within the family in order, laying the paths side by side, preparing the transition. Between that accompaniment and any later marketing instruction there is a deliberate period for reflection, in which you also get to know other providers. Anyone who offers both without that separation has precisely the conflict this page is about.

As a buyer, do I have to pay commission at all?: With a flat or a single-family house, only if it has been agreed — and at most in the share also borne by the instructing party (section 656d BGB). Your share only falls due once the instructing party has paid and proof of that exists — which either they or the agent may supply.
The agent wants a flat fee for expenses if nothing comes of it. Is that allowed?: That is not commission but a separate agreement, and it must be expressly made. The statutory default is the opposite: no contract, no fee (section 652 BGB). Read carefully what you sign.
Our agent also serves the buyer. Is that allowed?: Yes, in principle. But then they must take the commission from both sides in equal shares (section 656c BGB), and they lose the claim entirely if they favour one side at the expense of the other (section 654 BGB). Ask about it and have it recorded.