What does buyer caution mean

Real estate purchase : Beware of the brokerage clause

Whether it's a house, apartment or plot of land - when buying a property, a real estate agent is often on hand and charges a brokerage fee to mediate it. In order to secure this, some brokers want to record their claim in a clause in the sales contract. "The broker's clause is a declaration within the notarial purchase contract that the broker receives a commission from the buyer or seller," explains lawyer and notary Andreas Kühnelt from Kiel. The amount of the brokerage usually depends on the purchase price. But be careful: if the clause is incorrectly worded, it can potentially increase the property's market value. Additional costs can then be incurred by the buyer.

If the notarized purchase agreement contains the following clause: "The buyer undertakes to pay the brokerage fee of 30,000 euros to the brokerage company XY", it becomes even more expensive for the buyer. Because this increases the contract value. "As a result, ancillary costs such as the real estate transfer tax increase, as this is calculated as a percentage of the sales price," warns the Schleswig-Holstein Chamber of Notaries. Even if the broker's commission is only given as a percentage, the contract value and thus the ancillary costs increase.

Caution is also advised with the following formulation: “The buyer undertakes to pay a brokerage fee of 30,000 euros to the brokerage company XY and, because of this payment obligation of the brokerage company, submits to immediate foreclosure in his entire property.” In this case, the Realtor an enforceable title.

In the opinion of the Chamber of Notaries, this clause is inappropriate and contradicts "good morals". Buyers should therefore refuse to sign a contract with such a clause. "This clause is also rather unusual," says Notary Kühnelt.

The Chamber of Notaries also advises against this formulation: “The buyer undertakes to pay a brokerage fee of 30,000 euros to the brokerage company XY. The buyer waives any claims for damages from the prospectus liability and assures that this current purchase contract does not deviate in any point from the information that the broker made to the buyer before the contract was concluded. The broker has not made promises of any kind. ”By signing such a contract, the buyer gives the broker a free ticket, warns the Chamber of Notaries. The buyer no longer has a chance to claim damages should it later turn out that the broker did not give proper advice.

Agreement on a commission does not belong in the notarial sales contract

However, this clause is unproblematic: "This contract was concluded through the mediation of the brokerage company XY." This gives the broker a basis with which he can claim his brokerage fee when he has provided his services. "For the buyer, it does not mean any higher ancillary costs," explains Notary Kühnelt.

In the opinion of the owners' association Haus & Grund Germany, the agreement on a commission does not belong in the notarial purchase contract. If the wording is incorrect, the tax base increases, and this has disadvantages for the buyer. "You should make a special arrangement with the broker outside of the sales contract," advises association expert Stefan Walter. The broker's clause is completely unnecessary anyway if the broker has already indicated in the sales advertisement that he is demanding a commission of a certain amount from the buyer.

In another case, on the other hand, the buyer cannot avoid the broker's clause: If the seller has concluded a contract with the broker, but the seller also stipulates that the buyer must also take over part of the broker's commission with the purchase. "That is an obligation that the buyer has towards the seller, and it belongs in the sales contract, otherwise it is ineffective," says Kühnelt. But this then increases the ancillary costs.

Buyers of land or real estate should be vigilant and seek detailed advice from a notary before signing a sales contract with a brokerage clause so that there are no nasty surprises. "The notary has to explain every clause and its consequences," says Kühnelt. In addition, he only notarizes what the contracting parties want - and that is only the buyer and the seller. The broker is not a party to the contract and the notary is not his representative.

Also, be careful with the right of first refusal, where a broker's clause can also result in additional costs. For example, if a tenant exercises his right of first refusal, he must basically provide the same services as the first buyer. If the latter has agreed to a broker's clause, this can also mean for the person entitled to pre-emptive that he has to pay the commission in addition to the purchase price, the Federal Court of Justice ruled in 1995 (Az .: III ZR 34/5). A right of first refusal can result from statutory provisions or be contractually agreed. (dpa)

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