The Act on the Regulation of Residential Real Estate Brokerage, which has been in force since June 1, 2015, determines who must bear the remuneration from residential real estate brokerage contracts. Previously, landlords of residential property were allowed to pass on the costs of the estate agents they commissioned to future tenants. The new legal regulation has introduced the so-called buyer principle, which states that the person who commissions the estate agent must also pay them. This means that estate agents are prohibited from charging commission to those looking for accommodation, unless the agent is looking exclusively on behalf of the person searching, who then also concludes a tenancy agreement – with the landlord. In practice, it is therefore generally no longer possible for a prospective tenant to pay commission, as the estate agent would have to prove to the prospective tenant that he or she only brokered the apartment in question on the tenant’s behalf and that it was not already in his or her portfolio. The commission is also waived if the estate agent shows a rental property that he has identified to several interested parties, as he can then no longer prove that he has identified the apartment exclusively on the basis of an agency agreement with the person looking for an apartment.
Against this background, residential rental properties offered in the context of a “marketplace for commission-free real estate” with pictures and descriptions (exposé) cannot trigger a commission obligation for the interested clientele, because these offers must naturally always be based on an order by a third party willing to let. The fact that the offer is commission-free is therefore a characteristic that arises directly from the law as being mandatory for such offers.
This highlighting of the absence of commission in the proceedings does contain objectively correct information. However, it gives the targeted consumer the incorrect impression that it has a special advantage over other offers of a comparable nature and is therefore likely to mislead consumers (OLG Brandenburg, judgment of October 22, 2019, Ref.: 6 U 54/18).