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No liability of the real estate agent in case of incorrect information in the exposé

10. November 2021
From Probandt
Reading time: ca. 2 Minuten

It happens again and again that brokers make inaccurate or even wrong data in their exposés over the object standing to the sales. In a case decided now by the OLG Munich the broker had indicated that the multi-family house standing to the sales was built around approx. 1950. Actually the multiple dwelling had been established already in the year 1913. The buyer (and customer of the broker) refused thereupon the payment of the broker commission with the reason, the broker acted regarding the wrong indication over the year of construction deliberately, at least however roughly negligently.

The OLG Munich (judgment of 14.04.2021 - 27 U6526/20) has amended the decision of the Regional Court of Munich, with which it had followed the argumentation of the buyer, and granted the commission claim of the broker. In doing so, it clarified that the forfeiture of the broker's claim for commission is punitive in nature. Therefore, the provision of § 654 BGB could in principle only be applied to cases of unfaithful conduct of the broker in the true and narrower sense. Not every objectively significant breach of duty by the broker and thus also not every fault in providing information and advice therefore renders the broker's entitlement to commission null and void. This is only the case if the broker has violated his fiduciary duty intentionally, if not maliciously, or at least in a grossly reckless manner that comes close to intent. This decision is likely to be applicable in particular also to other price-determining characteristics such as e.g. incorrect surface data or building law commitments.

(Compare to the topic also the following further decisions: OLG Munich, decision of 29.08.2019 - 5 U 3296/19; OLG Koblenz, decision of 02.05.2019 - 2 U 1482/18; OLG Frankfurt, decision of 04.06.2018 - 19 U 191/17 and OLG Düsseldorf, decision of 25.09.2015 - 7 U 48/14).

If you have any questions on this topic, please contact attorney Dr. Probandt.

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