Who actually bears the agent's fees – the landlord or the tenant, the seller or the buyer? The answer depends on whether it concerns a rental or a purchase. For both cases the legislator has created clear rules: the so-called ordering-party principle (Bestellerprinzip) for residential lettings and the 50/50 split of agent's fees for the purchase of apartments and single-family homes. We explain to you factually and clearly which rule applies when, who pays in the end and which cases are exempt.
What does the ordering-party principle mean?
The ordering-party principle (Bestellerprinzip) is a simple basic idea: whoever orders the agent also pays for them. The term comes from the law on the brokerage of residential accommodation and has applied since 1 June 2015 to the brokerage of rental apartments. So if the landlord engages an agent to broker their apartment to a new tenant, the landlord bears the costs – and not the person looking for accommodation.
A clean distinction is important: the ordering-party principle in the strict sense concerns only the letting of residential accommodation. For the purchase of an apartment or a single-family home, a different rule has applied since 23 December 2020, namely the 50/50 split of agent's fees. Both rules pursue a similar aim – a fair distribution of the burden – but are based on different statutes. We explain this difference step by step in the following sections.
The ordering-party principle for rentals since 2015
The statutory basis for rentals is the Residential Accommodation Brokerage Act (Wohnungsvermittlungsgesetz, WoVermittG). Under Section 2 paragraph 1a, the agent may only demand a fee from the person looking for accommodation if they became active exclusively on the basis of a search order from that person and only thereby obtained the apartment from the landlord.
In practice this means: if the landlord has engaged the agent or the apartment was already in the agent's portfolio, no commission may be demanded from the tenant. Then the landlord pays as the ordering party. Only if a tenant independently engages the agent with the search and the agent becomes active exclusively for that reason can the tenant be charged.
There is also a formal requirement: under Section 2 paragraph 1, the brokerage contract requires text form – an email or a fax suffices, a mere verbal arrangement does not. If text form is lacking, there is no claim to commission.
How high may the commission be for a rental?
For the rare case that a tenant has engaged the agent themselves and therefore has to pay, there is a statutory upper limit. Under Section 3 paragraph 2 WoVermittG, the agent may demand at most two months' rent plus the statutory value added tax from the person looking for accommodation.
Decisive here is the net cold rent: incidental costs that are settled separately are left out of the calculation. At 19 percent value added tax, this works out to a maximum of 2.38 net cold rents. Conversely, if the landlord engages the agent, there is no statutory cap on the agent's fee; it is agreed between the landlord and the agent.
In addition, the law prohibits advance payments as well as hidden extra charges such as drafting or processing fees. These protective provisions ensure that the burden for tenants remains clearly limited and comprehensible.
Halved agent's fees for purchases since 2020
For the sale of an apartment or a single-family home to a consumer, a separate rule in the German Civil Code (Bürgerliches Gesetzbuch) has applied since 23 December 2020. It is not an ordering-party principle, but a rule on the distribution of agent's fees – although in the result it usually leads to a 50/50 split.
If the agent becomes active for both sides, that is, for seller and buyer, then under Section 656c BGB both parties may only commit themselves to payment in equal amounts. If at first only one side engages the agent – as a rule the selling owner – then Section 656d BGB applies: the other party may then be charged at most in equal amount, that is, no more than half. Text form under Section 656a BGB also applies to purchases.
A special feature additionally protects the buyer: their share only becomes due once the original principal has demonstrably paid their own commission. A statutory upper limit on the amount of the commission itself, by contrast, does not exist for purchases.
Rental and purchase in direct comparison
Even though both rules protect the consumer, they must be clearly separated in legal terms. The following points summarise the differences:
- Rental: a genuine ordering-party principle under the WoVermittG since 1 June 2015 – whoever orders the agent pays, so as a rule the landlord.
- Purchase: 50/50 split or participation in equal amounts under Sections 656c and 656d BGB since 23 December 2020 – the costs are shared between seller and buyer.
- Cap: for rentals, the tenant's commission is limited to two net cold rents plus value added tax; for purchases there is no statutory maximum limit.
- In common: in both cases the agency contract must be concluded in text form, and the commission only arises in the event of success.
Whoever knows this distinction can correctly assess from the outset which costs will arise in their own situation.
Which cases are exempt?
Both the ordering-party principle and the 50/50 split apply only to certain constellations. A number of cases is expressly not covered:
- Commercial properties: the WoVermittG applies only to residential accommodation. For the brokerage of commercial premises, the ordering-party principle does not apply.
- Multi-family houses and undeveloped land: Sections 656c and 656d BGB apply only to apartments and single-family homes, not to multi-family houses or plots of land.
- Commercial buyers: the 50/50 split for purchases applies only if the buyer is a consumer. If an entrepreneur buys, the rules do not apply.
In these exempt cases there is neither a statutory split nor a cap. The commission and the question of who bears it are then agreed individually between the parties and are subject only to general agency law.
What this means for you in practice
For most owners and prospective parties, the legal situation can be brought to a clear common denominator: for the rental of residential accommodation, as a rule the side that engages the agent pays – so usually the landlord. For the purchase of an apartment or a single-family home by a consumer, seller and buyer generally share the agent's fees in halves.
What is decisive is that the agency contract is in text form and that the roles are clear from the start. For commercial properties, multi-family houses or commercial buyers there is more room for arrangement, because no statutory split applies here.
As a company active in Düsseldorf and North Rhine-Westphalia for over 60 years, Richter Immobilien-Transaktionen accompanies you reliably through these rules. Through a network grown over decades with more than 20,000 contacts, we bring owners and suitable prospective parties together – transparently and with legal certainty, with a fee that is only payable in the event of success.
