Agent's commission in Berlin: who pays what?

What changed in 2020

In the past, it was common in many places for the buyer to pay the entire commission, even though the seller had brought in the agent. The legislator considered this unfair. Whoever chose the agent and told them what to do paid nothing. Whoever paid had no say.

Since 23 December 2020, the rules have been set out in §§ 656a to 656d BGB (German Civil Code). The basic idea: if both sides benefit, both sides share the costs.

Which properties the rules apply to

The rules apply to the purchase of single-family houses and flats, and only if the buyer is a consumer. Consumer means a private individual who is not buying for professional or business purposes. They do not apply to multi-family buildings, plots, commercial properties or buyers acting as businesses. There, the client and the agent set the amount and the split in the agency agreement, before marketing begins and in black and white.

This limitation is often overlooked. If you buy an apartment building (Zinshaus), you cannot rely on the equal split. Conversely, with a flat (Eigentumswohnung) it does not matter whether you want to live in it yourself or let it. As long as you buy privately, you are protected.

The three rules in detail

1. The agreement must exist in black and white, § 656a BGB. The law calls this text form. It means legible and durable, so an email or a letter. No signature is needed. What is not enough: an agreement on the phone, a handshake or a nod at the viewing.
2. If the agent works for both sides, both pay the same, § 656c BGB. If the agent is paid by both buyer and seller, the amount must be the same on both sides. If the agent does not comply, they receive nothing from either party.
3. Passing on only half, § 656d BGB. If only one side engaged the agent, it may pass on at most half of its commission to the other side. And the other side only pays once the client has proved that they have paid their share.

The last rule is your strongest lever as a buyer. You only pay once the seller presents their proof. Ask for it before you transfer any money. Nobody will offer it to you unprompted.

What this means in practice in Berlin

In Berlin, the commission today is usually 7.14% of the purchase price, including VAT, split into two equal halves of 3.57% each. This figure is not in any law; it has become established on the market. The client and the agent record the amount in black and white before marketing begins. When a flat or single-family house is sold to a private individual, the commission is split (§ 656c, § 656d BGB).

With a purchase price of €500,000, that is €17,850 per side. The other costs that come on top are covered in the article on additional purchase costs in Berlin.

A formal pitfall that can prove expensive

The text form under § 656a BGB is often underestimated. If the commission notice only appears in an email signature, i.e. below the ‘Kind regards’, case law says this is not automatically enough. It must be clear that someone is making a declaration here, and who that is.

For agents, this means the notice belongs in the body of the text, not at the end after the sign-off. For buyers and sellers, it means that if the form is wrong, there is no commission.

We work with written agency agreements and state the commission in the body of the contract, not in a footer. This is not a formality for its own sake. Without it, the agreement would be worthless.

When commission is actually earned

However it is split, three things must come together. There must be an agency agreement. The agent must have identified the property or brokered the purchase. And a purchase contract must result from this. If the purchase falls through, there is no commission, not even after fifty viewings.

There are two further cases without commission. The agent is economically part of the seller, for example because both belong to the same company. Or the agent has breached their duties towards the client. Both are rare, but they do happen.

Sources

• § 656a BGB (German Civil Code), text form of the agency agreement
• § 656c BGB, right to commission when acting for both parties
• § 656d BGB, agreements on agency costs
• § 652 BGB, when the right to commission arises
• Act on the Distribution of Agency Costs in the Brokerage of Purchase Contracts for Flats and Single-Family Houses, in force since 23 December 2020