Real estate agent
A real estate agent is a trader who proves an opportunity for a purchase agreement or lease for real estate or who mediates such an opportunity and thus acts as a broker between the owner and interested party. If a contract is concluded through his work, he receives a commission (also called "brokerage"), the amount of which is usually determined according to the purchase price or rental price.
Depending on the legal framework in the country and the situation on the real estate market, it may be the case that the commission is not paid by the agent's client, but by the other contracting party.
Situation in Germany
In Germany real estate agents are used by the landlord or seller or by the tenant or buyer, depending on the area and market situation.
In addition to registering their trade, the German real estate agent always requires an official permit in accordance with Section 34c of the Trade Regulations to exercise his activity. This permit includes
- the brokerage of the degree ( placement agent ) or
- proof of the opportunity to graduate ( evidence broker )
of contracts over
- Land or real estate ,
- leasehold rights,
- rented living spaces and commercial spaces.
He receives a broker's commission for his successful efforts (principle of success ). To broker a property, a brokerage contract is concluded with the provider and / or the customer. This / these act as the client of the real estate agent. The essential content is the so-called commission promise (brokerage) of the client (s) if the activity of the broker brings about the desired success. The brokerage contract can be concluded in writing, orally or through implied (conclusive) behavior.
As an alternative, there is seldom the so-called "fixed price broker" where the fee does not depend on the successful sale.
In the last few decades, the first larger brokerage firms have emerged in Germany that operate nationwide. Some of them resort to franchising . In addition, many credit institutions , above all Volks- and Raiffeisenbanken and savings banks , offer real estate brokerage services.
The Real Estate Association Germany IVD Federal Association of Real Estate Consultants, Brokers, Administrators and Experts eV is the largest association of the housing and real estate industry in Germany, in which real estate agents are organized.
The designation real estate agent is neither protected nor does it require proof of technical suitability or professional training to exercise. Anyone can register and operate a brokerage under the aspect of freedom of trade. However, professional associations such as the IVD also require a certificate of expertise and specialist knowledge for brokers and property managers. For business registration according to According to § 14 GewO (obligation to notify) a special (broker) license according to § 34c trade regulations is necessary. B. can be refused in the case of previous convictions due to capital offenses or an “unordered financial situation” of the applicant.
In practice, there are three types of representation by real estate agents in Germany:
- General order (the client can involve other brokers and act himself),
- Sole order (the client may not use any other brokers, but the client is still allowed to sell / buy himself) and the
- qualified sole contract.
The qualified sole order means the greatest possible security for the broker, since the client is not allowed to act himself and all interested parties for the property must refer to the broker. Since this very restricts the seller, the case law requires that the consultation and referral regulation requires individual negotiation in order to be effective. Sole orders must be limited in time to protect the client.
Civil law foundations
The law of the " civil agent", to which the real estate agent is also included, is regulated in §§ 652-654 of the Civil Code (BGB) and its formulation dates from 1896. However, the law of obligations modernization law did not lead to any amendment of these regulations, so that the BGB still speaks of “broker” and “brokerage”. The brokerage law was conceived as a unilateral so-called "luck deal". According to the law, a real estate agent commissioned with the sale of a property does not have to do anything. The client, for his part, can withdraw the order at any time, change the terms and conditions of the offer and do whatever else he wants ("principle of the client's freedom of choice"). It is unsuitable for commercial brokerage activities, so that brokers and clients usually make agreements that deviate from statutory law.
Real estate law today is mainly judge law . The problem with this, however, is that the statutory law, despite its obvious weaknesses, has the character of a model for case law, so that a too far-reaching deviation from the law within the framework of general terms and conditions (e.g. in the case of so-called qualified sole agency) leads to nullity.
The broker's commission is due when the brokered contract is concluded, so that any advance payment by a broker is at his own risk. Incidentally, this also corresponds to the usual content of agreements for sole orders.
Broker training
Germany
In Germany, all that is required is an official permit (Section 34c of the Trade Regulations). Anyone applying for a permit must prove their personal reliability and orderly financial situation. The applicant may z. B. have not been convicted of theft, fraud, or a bankruptcy or bankruptcy crime in the past five years. German real estate agents are free to decide whether they want to qualify on a voluntary basis, for example to avoid liability cases. There is no legally regulated professional training to become a real estate agent. The training course, which also covers the essential contents of the profession of real estate agent, is the three-year training course to become a real estate agent. This professional training suggests z. B. the IVD as a minimum qualification for real estate agents. Various institutions offer broker-specific training courses, for example to become a “certified real estate agent”.
Other countries
In most western countries, including the US, real estate agents are required to have a professional qualification before they can practice the profession. A registration under commercial law, as shown above, is not sufficient, but the requirements are very different. In Austria, for example, real estate agents have to demonstrate a solid education, including extensive professional experience, and at the end pass a proficiency test, unless they have already completed a relevant university course or a technical college degree. In France, brokers must have a university degree and training with a notary before they can start a business.
Europe
The DIN EN 15733 standard has existed within the European Union since April 2010. This is a voluntary certification that proves that real estate agents have minimum qualifications (training as a real estate specialist) throughout Europe. In addition, a broker with this EU certificate must adhere to a comprehensive information obligation and a moral code towards his customers.
Brokerage commission
The commission claim arises if there is a causal connection between the brokerage activity and the conclusion of the contract. In the event of a dispute, the broker must prove this requirement , for example by means of written proof of real estate . The amount of the broker's commission, which is referred to in § 652 BGB as " broker's wage", can in principle be freely negotiated within certain legal limits and is based on the market situation, the price of the property and the usual market conditions . It is usually
- for private property sales in Germany, regularly between 5.95 and 7.14% of the purchase price (including sales tax ),
- for private real estate rentals up to two net monthly rents (plus VAT ) ( limited by the Housing Agency Act) and
- for commercial real estate transactions according to the individual agreements between the broker and the client.
The normal market percentages of the broker's commission for real estate sales vary from state to state. These are not legally binding commission amounts, but serve brokers and customers for orientation:
| Seller
("Internal commission") |
Buyers
("External commission") |
state |
|---|---|---|
| 0 €
(0%) |
€ 28,560
(6.0% plus 19% VAT = 7.14%) |
Berlin, Brandenburg |
| 0 €
(0%) |
€ 25,000
(5.25% / 6.25%) |
Hamburg |
| 0 €
(0%) |
23,800
(5.0% / 5.95%) |
Bremen, Hesse |
| € 0 or € 14,280
(0% or 3.0% / 3.57%) |
19,040-23,800 or € 14,280
(4-5% / 4.76-5.95% or 3.0% / 3.57%) |
Lower Saxony
(2 models of brokerage commission: 1st seller 0% and buyer 4-5% plus VAT; or 2nd buyer and seller each 3.0% plus VAT) |
| € 9,520
(2.0% / 2.38%) |
€ 14,280
(3.0% / 3.57%) |
Mecklenburg-Western Pomerania |
| € 14,280
(3.0% / 3.57%) |
€ 14,280
(3.0% / 3.57%) |
Baden-Württemberg, Bavaria, North Rhine-Westphalia (NRW), Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, Thuringia |
Depending on the regional usages for the private real estate brokerage business, the commission
- shared between buyer and seller (often in equal parts),
- worn exclusively by the seller or
- worn exclusively by the buyer.
In the industry, the seller's commission is referred to as internal commission , and that of the buyer as external commission. A full internal commission, also known as the ordering principle , has the advantages that
- the property can be offered to the buyer without additional brokerage commission (i.e. it is factually included in the purchase price, provided the market situation permits),
- Insofar as the buyer has lower incidental acquisition costs that are difficult to borrow within the scope of real estate financing and
- this represents an economically efficient cost allocation, since the person who decides on the commissioning and selection of a broker also pays him, so that a real quality and price competition arises.
A full internal commission apparently has the disadvantage that the ancillary acquisition costs, such as u. a. the real estate transfer tax and the notarization costs are higher, as these i. d. Usually calculate on the basis of the value of the notarization or the value of the consideration, and these values can increase due to the included brokerage fee. However, this view does not go far enough, as in a functioning market properties that are marketed without an agent compete with those in which an agent is active, so that a seller decides against the commissioning of an agent, the value of the brokerage can add to the purchase price and thus collect it yourself.
In rare cases, an additional revenue agreement is made between the seller and the broker. In addition to a commission, if a certain purchase price is exceeded, the additional revenue is divided between the broker and seller according to a certain previously agreed pattern.
Recently, the business model of a broker flat rate ("broker flat rate"; "commission-free broker") has also come into play. With this business model, instead of the usual brokerage commission, a fixed amount is paid for marketing the property to be brokered. For this amount, the customer receives services that should lead to the sale of the property, such as B. the market value appraisal of the property, advertising and conducting the sales negotiations up to the conclusion. After successful completion, no further costs are due, but the seller usually has to take over some services himself (e.g. carrying out inspections). The amount for this clearly defined service must be paid at the beginning of the order. The customer does not have 100% certainty that an object will be conveyed. It is therefore no longer a pure brokerage service, but a real estate brokerage service, which differs in essential points from the brokerage service. The broker association IVD criticizes the new model because, in its opinion, only minimal services are provided for the amount.
Legally inadmissible brokerage fees, on the other hand, are further non-performance-related remuneration (e.g. service and handover fees, administration fees), viewing fees, commission claims already in the preliminary contract and pre-formulated referral clauses or direct sales bans.
On February 7, 2011, the German Bundestag rejected a new regulation of the broker's commission, as a change would be an unjustified interference with the freedom of contract and regional differences are not taken into account.
On June 7, 2013, the Federal Council introduced a bill on brokerage commission for rental apartments to the Bundestag. Accordingly, the “ ordering principle ” should apply to brokerage fees in the future . The real estate agent must be paid by the person who hired him. In this way, tenants in metropolitan areas in particular are supposed to be financially relieved, as the broker's commission then has to be borne by the landlord in most cases. The corresponding law came into force on June 1, 2015.
On August 16, 2018, it became known that the Ministry of Justice is examining the introduction of the customer principle also for properties offered for sale.
On 14 May 2020, adopted the Federal Government the draft law (19/15827), which is to perform a Germany-wide uniform division of the broker's commission and a financial relief for homebuyers. According to this new regulation, the seller is no longer allowed to completely pass the broker's commission on to the buyer, but instead has to pay at least fifty percent of the costs himself. The same rule should apply if it is the buyer who engages the broker.
Special features of residential real estate
The person who is the owner, manager or tenant of the rental property at the time of the contract or who is economically connected to the rental property may not demand any commission for the brokerage of living space. When brokering rental apartments, the amount of the commission is limited to twice the monthly net rent plus VAT. If many apartments are empty, many landlords take over the brokerage. If there is great demand, more apartments are offered with commission. However, no brokerage fee may be charged to the tenant for publicly funded apartments. The cooperative and municipal housing associations offer their apartments without commission. Most property management companies and private housing associations also rent their apartments without an agent.
Broker's commission in the notarial purchase contract
When real estate agents secure their rights to brokerage in the purchase contract, one speaks of the so-called broker clause. The broker clause states that the brokerage of the property has come about. If the brokerage clause is used with a formulation that subjects the buyer to immediate foreclosure on his property if the brokerage fee is not paid, this is not appropriate in the opinion of the Chamber of Notaries and is contrary to “common decency”.
If, contrary to the recommendation of the Chamber of Notaries, buyers of real estate accept such a clause, they should note that the mention of the broker and his commission in the notarial purchase agreement only results in an increase in the notarial certification fee if the seller agrees to pay the commission to the broker had committed to, but this obligation is then assumed by the buyer. If only the buyer has to pay a brokerage fee, this does not increase the building value subject to real estate transfer tax if the buyer has hired the broker. The simple sentence in the brokerage clause of the sales contract is sufficient for this: “The buyer has hired the broker.” If this sentence is missing, the broker's commission may increase the property transfer tax.
Situation in Austria
In Austria real estate agents are usually dual agents. They are usually commissioned and paid for by the seller. In practice, however, a buyer cannot access the seller's data without commissioning, which means that he also has to pay. As a result, however, the broker is obliged to represent both sides.
The brokerage fee is also usually only due after the successful conclusion of a sales, rental or lease agreement. There are exceptions to the sole agency mandate.
The agency fee for the sale of real estate is at most:
- Value up to EUR 36,336 per 4%
- from EUR 36,336 to EUR 48,448 = EUR 1,453 each
- Value from EUR 48,448 each 3%
Commission for brokering rental contracts
The following maximum commissions have been stipulated by law for the brokerage of rental contracts since September 1, 2010:
Mediation of main and sublease contracts for apartments and single-family houses (real estate agent is not also the manager of the building)
| Contract duration | landlord | Tenant |
|---|---|---|
| unlimited or limited to more than 3 years | 3 BMM ( gross monthly rents ), (possibly plus 5% for special payments in accordance with § 22) | 2 BMM |
| Limited to 3 years | 3 BMM, possibly plus 5% for special payments in accordance with § 22 | 1 BMM + 1/2 BMM for extension (if agreed) |
Mediation of main and sublease contracts for apartments and single-family houses (real estate agent is also the administrator of the building)
| Contract duration | landlord | Tenant |
|---|---|---|
| unlimited or limited to more than 3 years | 2 BMM, possibly plus 5% for special payments in accordance with § 22 | 1 BMM |
| Limited to 3 years | 2 BMM, possibly plus 5% for special payments in accordance with § 22 | 1/2 BMM + 1/2 BMM in case of extension (if agreed) |
| Limited to 2 years | 1 BMM, possibly plus 5% for special payments in accordance with § 22 | 1/2 BMM + 1/2 BMM in case of extension (if agreed) |
Mediation of rental contracts for business premises
| Contract duration | landlord | Tenant |
|---|---|---|
| unlimited or limited to more than 3 years | 3 BMM, possibly plus 5% for special payments in accordance with § 22 | 3 gross monthly rents |
| Limited to 3 years | 3 BMM, possibly plus 5% for special payments in accordance with § 22 | 2 BMM + supplement to 3 BMM in case of extension (if agreed) |
| Limited to 2 years | 3 BMM, possibly plus 5% for special payments in accordance with § 22 | 1 BMM + supplement to 3 BMM in the event of an extension (if agreed) |
Real estate agency commissions are subject to sales tax.
Situation in Switzerland
In Switzerland, the activity of a "real estate agent" (note: this term does not exist in Switzerland) is paid for exclusively by the landlords or sellers. Passing on the costs to the tenant is not possible according to the Swiss Code of Obligations . You would, like the z. B. German approaches, perceived as " usury ". As a rule, the activities of a "real estate agent" are carried out by - qualified - real estate administrations from real estate trustees, real estate economists or merchants.
Other countries
Brokers commissioned and paid by the landlord
In addition to Switzerland, real estate agents are commissioned and paid for by landlords in Belgium, Great Britain, Ireland, the Netherlands and Norway.
Brokers commissioned by the landlord but paid by the tenant
In addition to Austria, the brokers are also paid by the tenants in the following countries (broker commission in brackets as a percentage of the annual rent):
- Finland: 8.33 percent
- Denmark: 6.25 percent
- France: 4.50 percent
- Luxembourg: 8.33 percent
- Italy: 3.50 percent
- Sweden: 1.75 percent
For comparison:
- Austria: 22.7 percent
- Germany: 13.10 percent
literature
- Erwin Sailer: The real estate agent - basics strategies development potential. 2nd edition, Stuttgart 2007.
- Mario Axmann: Brokerage law and brokerage until 1900. Stuttgart, 2004.
- Helmut Seydel: "Broker Law" - A guide for brokers and their customers. nwb Verlag, Berlin.
Web links
- Comprehensive study on brokerage commissions in Germany, June 2006 (PDF; 786 kB)
- New regulation of the broker commission in 2020
Individual evidence
- ↑ Archive link ( Memento from January 15, 2013 in the Internet Archive )
- ↑ Information on the permit according to § 34c GewO , IHK Frankfurt am Main
- ↑ Archive link ( Memento from October 21, 2012 in the Internet Archive )
- ↑ Broker: DIN standard sets quality standards. (No longer available online.) IVD Immobilienverband, archived from the original on October 19, 2016 ; Retrieved October 18, 2016 .
- ↑ Bundestag rejects the new regulation of the brokerage fee. (No longer available online.) Immonet.news, February 7, 2011, archived from the original on January 27, 2013 ; Retrieved April 8, 2013 .
- ↑ Broker commission only according to the customer principle. Press release in the Federal Council archive , accessed on May 30, 2014 .
- ↑ Rent brake, reform of tenancy law. (No longer available online.) Federal Council website , plenary session, archived from the original on July 2, 2014 ; Retrieved June 19, 2014 .
- ^ Hermann-Josef Tenhagen: New ordering principle: The expulsion of the broker from paradise . Spiegel Online, May 30, 2015, accessed June 1, 2015
- ↑ German Bundestag Printed Matter 19/15827. In: https://dip21.bundestag.de/ . German Bundestag, December 11, 2019, accessed on July 10, 2020 .
- ↑ Be careful with the brokerage clause. In: Tagesspiegel. Retrieved September 7, 2018 .
- ^ RIS - Entire legal provision for professional ethics and practice rules for real estate agents - Federal law consolidated, version of April 5, 2011 . Federal Chancellery of Austria. Retrieved April 5, 2011.
- ↑ a b http://helpv1.orf.at/?story=435