In the past, the buyer of a property in Berlin had to pay the brokerage fee plus VAT alone. Consequently, the sellers never negotiated the amount of the commission. This role was assigned to the buyer. On 23.12.2020 the new brokerage law comes into force. From this date the half division applies.

In §§ 656a-656d BGB is now regulated with which sales contracts about real estate, the fees of the broker are to be divided.
Gegegenstand des Maklervertrages sind Wohnungen und Einfamilienhäuser. Each broker falls under these regulations, also the opportunity broker, not only the entrepreneurs. The buyer must be a consumer. The legislator considers that the one who buys real estate commercially is not worthy of protection. On the other hand, it is irrelevant whether the seller acts as a natural or legal person. The principle that the broker's fee is to be shared cannot be changed by other agreements, provided that the broker has been commissioned by both the buyer and the seller. If the broker tries to charge e.g. the buyer 80% of the commission and the seller only 20%, the whole brokerage contract is void and the broker gets nothing. An important regulation is the text form. The claim for remuneration of the broker requires a contract in text form. If this is missing, i.e. if this formal requirement is disregarded, then the brokerage contract is null and void. The broker's commission must also be paid by the buyer only when the seller or the broker proves that the seller has paid his commission. It is inevitable that sellers and brokers will try to circumvent these regulations. However, they should refrain from doing so in view of the clear regulations. In many federal states, this division of the broker's commission has long applied, so it is more than overdue that a uniform federal regulation has now been created.

Claudia Frank
Lawyer
Probandt PartGmbB