Where consumers purchase flats or single-family houses, the so-called principle of equal sharing (Halbteilungsgrundsatz, Section 656c of the German Civil Code – BGB) applies as a matter of principle: buyer and seller each bear half of the estate agent’s commission. If the agent expressly waives commission vis-à-vis one party, they may not claim commission from the other party either. An agent therefore cannot escape the equal-sharing rule by formally arranging to be paid by one side only. An agreement that breaches this rule renders the agency agreement void under Section 656c(2) BGB; the agent then goes empty-handed despite having successfully brokered the deal.
Given this severe sanction, it is decisive when a property legally qualifies as a “single-family house” – particularly in hybrid cases: what if a property is structurally a two-family house, but the buyer intends to occupy it as a single-family home?
In its judgment of 16 July 2026 (case no. I ZR 111/25), the Federal Court of Justice (Bundesgerichtshof, BGH) has provided clarity.
The facts
An estate agent offered a let two-family house (two units of approximately 80 sqm and 60 sqm) and agreed a buyer-only commission of 6.55% including VAT. Only during the viewing – and thus after the agency agreement had been concluded – did the buyer state that he intended to occupy the house solely with his family. Following the notarised purchase for EUR 675,000, he refused to pay the full commission of EUR 41,445, invoking the principle of equal sharing.
The decision
The Federal Court of Justice found in favour of the agent and established two key principles:
- A multi-family house may be treated in law as a single-family house where the acquisition is recognisably intended to serve the housing needs of a single household and the structural characteristics of the property permit such use.
- However, this only applies where the buyer made that intention apparent to the agent no later than upon conclusion of the agency agreement. Disclosure at a later point – for instance during the viewing – comes too late.
The reasoning: if subsequent disclosure were sufficient, an agency agreement that had already been validly concluded would become void retroactively (Section 656c(2) BGB) – leaving the agent with nothing despite a successful brokerage. That would run counter to the general principle that the validity of a legal transaction is assessed by reference to the circumstances existing at the time it was concluded. Only where the purpose of the acquisition is established in good time can the agent still adjust the arrangement with the seller or decline to enter into an agreement with the prospective buyer.
Practical implications
- For buyers: anyone purchasing a multi-family house in order to occupy it themselves as a single-family home must communicate that intention in a demonstrable manner before or directly upon conclusion of the agency agreement (for example, in the initial online enquiry or by email). Only then does the protection afforded by the principle of equal sharing apply. The burden of presentation and proof in this respect lies with the buyer.
- For estate agents: when marketing properties that are structurally suitable for single-family use, it is advisable to establish the intended purpose of acquisition in documented form as early as the initial approach, in order to avoid subsequent disputes.
- For contract drafting: where a property is expressly designated as a “two-family house” in the purchase agreement and the agreement contains commission clauses, the BGH judgment creates legal certainty: a subsequent declaration of owner-occupation by the buyer no longer overrides the agreed commission arrangement, provided that no diverging intention was demonstrably known to the agent at the time the agreement was concluded.
Conclusion
The Federal Court of Justice confirms and sharpens the position it took in March 2025 (I ZR 32/24): what matters for consumer protection under Section 656c BGB is the recognisable purpose of the acquisition – but only where this is communicated in good time, at the latest upon conclusion of the agreement with the estate agent.
Further reading: the principle of equal sharing can also become a trap where a tenant exercises a right of first refusal – see our article “Caution with commission clauses in purchase agreements: the Berlin Court of Appeal protects tenants entitled to a right of first refusal”.
