The agreement of reservation fees in the general terms and conditions of real estate agents is invalid. This was recently decided by the Federal Court of Justice (BGH). The decision also applies to cases in which the reservation fee is not included in the original estate agent contract, but was agreed separately at a later date. Customers can therefore reclaim the reservation fee paid if the real estate purchase does not go through.
In one specific case, customers demanded the repayment of a reservation fee that they had paid to an estate agency. The estate agency had reserved the desired house exclusively for the customers until a specified date and was not supposed to show it to any other buyers during this time. However, according to tagesschau.de, the customers were unable to find a bank to finance the purchase. The purchase contract was therefore not concluded. They went to court to reclaim the reservation fee.
The BGH overturned the decisions of the lower courts and ordered the estate agency to repay the reservation fee. The reservation agreement was not an independent new contract, but a supplementary provision to the brokerage agreement. According to the BGH, a reservation agreement "unreasonably disadvantages the brokerage clients [...] and is therefore invalid because the repayment of the reservation fee is excluded without exception". The reservation contract does not result in any significant advantages for the clients, nor does the estate agency have to provide any monetary consideration.
Sources and further information: bundesgerichtshof.de/tageschau.de
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