A sought-after property is to be held back for a limited time until financing and the purchase decision are settled – for this, some providers demand a so-called reservation fee (Reservierungsgebühr). Yet what a reservation agreement (Reservierungsvereinbarung) really achieves in legal terms is often overestimated: without a notarised purchase contract no binding obligation to buy arises, and the Federal Court of Justice (Bundesgerichtshof) declared standard-form reservation fees charged by estate agents invalid in 2023. This guide explains the legal position neutrally and names sensible alternatives.
What is a reservation agreement?
A reservation agreement (Reservierungsvereinbarung) is an arrangement between a prospective buyer and the seller or the intermediary estate agent by which a property is held back exclusively for a fixed period. During this time the property is not to be offered further or sold to third parties, so that the interested party can clarify financing and make the purchase decision in peace.
For this holding-back a reservation fee (Reservierungsgebühr) is often demanded. It is frequently structured so that it is set off against the agent's commission or the purchase price upon a later purchase, but is to be retained in whole or in part if the buyer withdraws.
The distinction is important: a reservation agreement is not a purchase contract. It only governs the temporary holding of the property, not the transfer of ownership. Whether and under what conditions it is valid at all depends decisively on its specific design and on who concludes it with whom.
Without a notary, no binding obligation to buy (§ 311b BGB)
A strict formal requirement applies when buying property. Under § 311b para. 1 BGB, a contract by which someone undertakes to transfer or acquire ownership of a plot of land requires notarisation. A binding obligation to buy or sell therefore only arises with the signature before the notary.
For the reservation this means: a private written reservation agreement cannot establish any enforceable obligation to buy. The interested party need not buy the property, nor is the seller legally compelled to sell to them. A paid reservation fee changes nothing about this either.
A reservation therefore mainly creates a mutual signal of seriousness and a commitment as to timing – but no genuine legal certainty that the purchase will ultimately come about. Anyone who wants real binding force must take the notarial route.
BGH 2023: Reservation fees in agent terms and conditions are invalid
The Federal Court of Justice (Bundesgerichtshof), by judgment of 20.04.2023 (case no. I ZR 113/22), ruled that an obligation of an agent's client to pay a reservation fee agreed in general terms and conditions is invalid. On the same day an identically worded parallel judgment was handed down (case no. I ZR 152/22).
In the case decided, buyers had concluded an agency contract and subsequently a reservation contract by which the property was held exclusively for a fee until a cut-off date. When the buyers refrained from the purchase, they demanded the fee back – successfully.
The BGH assessed the reservation arrangement as a supplementary provision to the agency contract that is subject to review of general terms and conditions. It unreasonably disadvantages the clients under § 307 para. 1 sentence 1, para. 2 no. 1 BGB, because repayment was excluded without exception, no significant advantages arose for the clients and the agent provided no monetary consideration.
Decisive in addition was: such a fee amounts to a success-independent commission. That contradicts the statutory model of the agency contract, under which a commission is owed only if the brokerage leads to success.
What the ruling specifically means for buyers
For prospective buyers the legal position has thus become clear: a standard-form, non-refundable reservation fee that an agent charges via pre-drafted contracts or its terms and conditions is regularly invalid. A fee already paid can in principle be reclaimed.
The amount or percentage is irrelevant here. The fact that the reservation is concluded in a separate document and after the agency contract in time also changes nothing about the invalidity, as long as there is an internal connection with the agency contract.
Anyone who has paid such a fee can reclaim it in writing. The consumer advice centre (Verbraucherzentrale) provides a template letter for this. If the agent does not comply with the justified demand, it falls into default. In cases of doubt, legal advice is worthwhile, for example from the consumer advice centre or a lawyer.
When a reservation can be sensible or permissible
The BGH ruling expressly concerns standard-form reservation fees charged by agents. It does not mean that every form of reservation would be impermissible. In certain situations a reservation can still be sensible and legally sound.
- Genuine individual agreement: If the arrangement was actually negotiated between the parties and not imposed through pre-drafted clauses, it is not subject to content review of general terms and conditions. In practice, however, this is the exception and hard to prove in a dispute.
- Notarisation: If a reservation is meant to secure binding obligations between buyer and seller, a notarised agreement may be the right route. Because of its binding effect and the costs, however, it should be examined carefully.
- Reservation without a fee: A reputable reservation can also take place without any payment of money – as a time-limited, trust-based promise to offer the property as a priority.
A reservation subject to payment provides the buyer with only limited legal benefit. It should never be misunderstood as a substitute for the notarial purchase contract.
Amount and risks for buyers
In practice, reservation fees were frequently demanded in the order of about 0.5 to 1 percent of the purchase price or as a share of the expected agent's commission. With a purchase price of 420,000 euros, for example, that can quickly amount to several thousand euros.
For buyers there are above all the following risks:
- Loss of the fee: If the payment is to be retained upon withdrawal, a financial loss threatens – even though the clause is often invalid under BGH case law and the money can be reclaimed.
- False security: The reservation does not legally bind the seller. They can sell the property elsewhere despite the reservation, as long as no notarial contract exists.
- Pressure to decide: A paid fee can tempt buyers to rush a purchase decision in order not to lose the money.
- Double burden: If the fee is not clearly set off against the purchase price or the commission, it can become an additional burden.
Buyers should examine every reservation arrangement closely before signing, in particular the provisions on repayment, deadline and set-off.
Alternatives to a fee-based reservation
Instead of a reservation subject to payment, there are ways to underline seriousness and speed up the purchase process without depositing money for a mere promise.
- Early financing confirmation: A financing commitment or proof of creditworthiness from the bank shows the seller and agent that the purchase is realistic and possible in good time.
- Binding purchase offer: A clearly worded, sincere offer signals genuine interest and creates trust.
- Swift preparation of the notary appointment: Anyone who quickly reviews the draft purchase contract and sets a notary appointment shortens the limbo period and reduces the risk that the property is sold elsewhere.
- Written, free-of-charge reservation: A time-limited, fee-free promise can create security on a trust basis, without financial commitment.
We at Richter Immobilien-Transaktionen accompany the purchase process so that both sides reach a well-founded decision swiftly and objectively – entirely without pressure from a reservation fee.
