Anyone who wants to sell a house enters into a brokerage contract (Maklervertrag) with the real estate agent. It defines which services are provided, how long the cooperation lasts and under what conditions a commission arises. There are different types of contract, each with its own rights and obligations. We explain neutrally which forms exist, what the contract contains and which statutory protective provisions apply to you as the seller.
What is a brokerage contract – and why does it require text form?
With the brokerage contract (Maklervertrag) you, as the owner, commission a real estate agent to identify a buyer for your house or to mediate the purchase agreement. The legal basis is Section 652 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The agent becomes active without you incurring costs immediately – the claim to remuneration depends on success.
For the sale of an apartment or a single-family house, Section 656a BGB prescribes the text form (Textform). The contract must therefore be set down in legible form on a durable medium – a signed letter is just as sufficient as an e-mail. A purely verbal arrangement is invalid and gives rise to no claim to commission. This requirement protects both sides and ensures clear conditions from the outset: you know exactly what has been agreed before the cooperation begins.
The three types of brokerage contract at a glance
The law regulates only the brokerage contract in general terms. In practice, three forms have developed which differ above all in whether you may commission additional agents and whether you yourself may look for a buyer:
- Simple brokerage mandate (Allgemeinauftrag): You may commission several agents in parallel and also find a buyer yourself. A commission falls due only if the purchase agreement actually comes about through the activity of this agent.
- Sole mandate (Alleinauftrag): Only one agent is entrusted with the marketing; further agents are excluded. The right to find a buyer yourself generally remains in place. In return, the agent undertakes to make serious and verifiable efforts to achieve the sale.
- Qualified sole mandate (qualifizierter Alleinauftrag): Like the sole mandate, but with a referral clause. You undertake to channel even prospective buyers you find yourself through the agent. In this way all enquiries are bundled together with the professional.
What a brokerage contract contains: services, term, termination
A clearly worded brokerage contract creates transparency. Make sure that the following points are expressly regulated:
- Type of contract and property: designation as a simple mandate or (qualified) sole mandate, as well as the precise specification of the property.
- Services of the agent: for example determining a market-appropriate asking price, preparing an exposé with professional photos, marketing via portals and the agent's own network, organizing viewings, reviewing documents and proof of financing, and accompaniment up to the notary appointment.
- Term: the start and duration of the cooperation, with a sole mandate frequently limited to a few months, often with the option of an extension.
- Commission: the amount as well as the express note that it is incurred only in the event of success.
- Termination: provisions on ordinary termination as well as on extraordinary termination for good cause.
Commission on a sale: success principle and equal split
The commission follows the success principle (Erfolgsprinzip) under Section 652 BGB: it arises only if the purchase agreement actually comes about as a result of the agent's activity, and it usually falls due upon notarial certification. If no contract comes about, no commission is incurred either – the agent bears the risk of advance performance.
On the sale of an apartment or a single-family house to a consumer, special distribution rules have applied since the end of 2020. If the agent acts for both sides, under Section 656c BGB he may demand the commission only from both in equal amounts. If only one side commissions the agent, under Section 656d BGB a participation by the other party is effective only if the principal pays at least the same amount themselves. A complete shifting of the costs onto only one side is thereby excluded.
Your right of withdrawal as a consumer: 14 days
If you conclude the brokerage contract as a consumer away from the agent's business premises – for example at your home or during a viewing – or by means of distance selling, that is exclusively by telephone, e-mail or over the internet, you are entitled to a right of withdrawal. It arises from Section 312g BGB in conjunction with Section 355 BGB.
The withdrawal period is 14 days from conclusion of the contract. You declare the withdrawal informally and without giving reasons, for example by e-mail or letter. A prerequisite for the period to begin is that you were properly instructed about your right of withdrawal. If this instruction is missing, the period is extended considerably – up to twelve months and 14 days. If you wish the agent to become active before the period expires, he must obtain your express consent for this and inform you about the consequences.
What you as the seller should watch for in the brokerage contract
Before you sign, it is worth taking a scrutinizing look at a few points:
- Services specified concretely: general phrases say little. Have a list drawn up of what the agent actually undertakes for you.
- Appropriate term: a time limit gives the agent time to market the property without binding you unreasonably long. Check automatic extension clauses.
- Success-dependent commission: the remuneration should be incurred exclusively in the event of success. Flat fees payable in advance are unusual.
- Termination rules: termination for good cause is always possible, for example in the event of the agent's lasting inactivity.
- Text form and withdrawal instruction: both must be present. Take the time to read the contract calmly.
Advantages of a qualified sole mandate – with Richter at your side
A qualified sole mandate (qualifizierter Alleinauftrag) bundles the responsibility with one contact person who concentrates fully on your sale. Because all enquiries run through the agent, you keep an overview, avoid competing listings with different prices and protect the value of your property on the market. The agent, in turn, can invest in the marketing with full force, because he knows that his work will be rewarded in the event of success.
Richter Immobilien-Transaktionen, based at Königsallee 61 in Düsseldorf, stands for fair, transparent brokerage contracts on a success basis. With more than 60 years on the Düsseldorf market and a network that has grown over the decades with more than 20,000 contacts, we accompany your sale in North Rhine-Westphalia (NRW) personally and reliably – with clear arrangements and without hidden conditions.
