Altenkirchen Local Court, 14/08/2014, Ref.: 71 C 104/14
A brokerage contract obliges the client to pay a brokerage fee or commission in the event that the intended main contract (e.g. property purchase contract) is concluded on the basis of evidence or brokerage by the broker.
But what rights does the client have if, in his opinion, the estate agent acts incorrectly in his brokerage activities? With regard to the broker's liability, the broker is not liable for the accuracy of information that he has recognisably obtained from third parties, but only for the accuracy of the information provided. The estate agent is also not obliged to check the property details provided by his client.
In the above-mentioned case, the Local Court of Altenkirchen had to decide whether the client had to withhold the estate agent's commission because, in the client's opinion, the estate agent should have checked whether the property sold was suitable for permanent living.
Facts of the Case:
Estate agent sues property buyer for payment of brokerage fee
The plaintiff is seeking payment of a brokerage fee from the defendants. As an estate agent, the plaintiff was commissioned by the defendants to provide them with evidence of a contractual opportunity for the sale of the property owned by them.
Accordingly, a brokerage agreement was concluded on 17 July 2012, in which a brokerage commission of 3.57 was agreed, earned and due upon conclusion of the notarised purchase agreement.
The plaintiff prepared an exposé, advertised the property on the Internet and on relevant property portals and placed adverts in local daily newspapers.
Through the plaintiff's activities, a buyer finally became aware of the property, who contacted the plaintiff and received further documents by email on 13 September 2012. This was followed by a viewing appointment on site and then, on 4 December 2012, the notarised purchase agreement, with which the buyer acquired the property from the defendants at a purchase price of EUR 85,000.00.
In Section 13 of the brokerage agreement, the parties concluded a brokerage clause in which the seller's obligation to pay a commission of EUR 3,334.50 was stipulated. Section 5 of the brokerage agreement also stated:
"If a party withdraws from the contract due to a statutory or contractual right of withdrawal or cancellation of the contract, the broker's commission claim shall nevertheless remain in force. The notary has provided detailed instructions on this clause."
The estate agent had described the house as a detached house, but in fact it was purely a weekend home
During the sales negotiations with the buyer, the plaintiff had described the property as a detached house suitable for permanent living. In the exposé, the property was advertised as being "also suitable as a weekend home".
In fact, the property was purely a weekend house that was not suitable for permanent living. The plaintiff had received information from the defendants that the house was also suitable as a single-family home.
Purchase agreement was cancelled, buyers did not pay brokerage fee
As the property was not suitable for permanent living, the purchase agreement was later cancelled in the course of further legal proceedings between the buyer and the sellers.
In an invoice dated 12 December 2012, the plaintiff demanded the brokerage fee from the defendants. No payment was made. No payment was made even after several reminders.
Judgement of the Altenkirchen Local Court:
Local court ruled that estate agent was entitled to payment of commission
The Altenkirchen Local Court ruled that the plaintiff had a claim against the defendants for payment of the estate agent's commission.
In the opinion of the court, the claim follows from the brokerage agreement concluded between the parties in conjunction with the provision in Section 13 (2) and (5) of the brokerage agreement.
Provision in brokerage contract regulates payment obligation despite cancellation of purchase contract
The cancellation of the purchase agreement between the defendants and the buyer does not change this, as § 13 clause 5 of the brokerage agreement expressly regulates. In this respect, this reversal could not be held against the claim for payment of the brokerage fee.
Furthermore, the defendants would not be entitled to any defence against the asserted claim, in particular not from the fact that the plaintiff was responsible for poor performance of the brokerage contract, which could trigger a claim for damages at least in the amount of the brokerage fee.
The defendants would have had to demonstrate and prove a corresponding poor performance. The defendants had not been able to do so.
The estate agent explicitly pointed out that the information in the exposé was provided by the seller
The plaintiff had undisputedly argued that the relevant information had been provided by the defendants and had been included in the exposé.
In this context, the plaintiff was also not obliged to inform itself about any building restrictions, since, according to its undisputed factual submission, it had accepted the information provided by the defendant in the exposé and other advertising measures.
In this respect, it would have been up to the defendant to explicitly point out the corresponding building law restrictions or at least to make it clear that the property could only be used as a holiday and weekend home.
Source: Altenkirchen Local Court
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