No commission if agreed condition is not met

Although real estate agents are helpful to both sellers and buyers, the usefulness of their services is often questioned when it comes to securing a sale. Estate agent’s commission to pay. This may also be linked to the fact that, in the event of a successful sale, the estate agent’s commission can, in absolute terms, represent a not insignificant cost factor. Often, it is also because the Agreements between the estate agent and the client Room for discussion offer. In the following case, the Supreme Court (GZ 8 Ob 131/15w of 29 March 2016) to consider the question of whether the estate agent is entitled to a Commission is due, if a previously agreed Condition Not occurred is.

The starting point was the appointment of an estate agent’s to handle the Sale of two houses, whereby the seller is also required to Exclusive agency agreement was awarded to the estate agent’s, as was a special commission agreement was signed in the event that the mediation was unsuccessful. Likewise, agreed and set out in writing, that first that house (the His partner’s house) had to be sold and only then his own house. During a subsequent viewing, the seller told a prospective buyer that he was willing to sell his house, as he could move in with his partner. For the Estate agent It was therefore obvious that the Seller, as per the original terms (Sale of the partner’s house prior to the sale of one’s own house) departed had been and wanted to sell as soon as possible. Shortly afterwards, however, the house in question was not sold to the prospective buyers who had attended the viewing, but rather the The seller reached an agreement with two other buyers. Consequently, the exclusive agency agreements for both properties were also terminated. Citing several reasons the estate agent requested die Payment of the estate agent’s fee – not least because the seller’s house was sold before the exclusive agency agreement was terminated and, moreover, he had the Decision, his house in front of his partner’s house after all to want to sell, to the estate agent (verbally) expressed had.

The requirement for a written contract protects consumers from errors, surprises or misconceptions regarding specific terms of the contract

The provision applicable in the present case Consumer Protection Act (KSchG) stipulates that agreements concerning the Conclusion and renewal of exclusive agency agreements as well Arrangements in the event that mediation is unsuccessful only apply if they explicitly and in writing are carried out. By expressiveness is meant that the Written agreement a highlighted one for the consumer clearly discernible and clear and distinct Regulation of these points must be included. The OGH emphasized that this Protective purpose Accordingly, also only in writing from one agreed to postpone the condition could be done. That just verbal evasions Therefore, this condition is not present during a viewing appointment. not sufficient. In this case, it can also Not only from Changes to details one of the contracts subject to the KSchG that do not require written form shall be deemed to have been concluded. Seller Must None Estate agent’s commission pay, because the the suspensive condition never occurred is; namely, that the House the spouse (first) was sold.

The OGH also noted that even in the case of mere Placement order for the seller's house no commission claim on the part of the broker. At Real estate agents sufficient for the Reason for a commission claim regularly the Proof of the opportunity to purchase – Practically speaking, this is the first time Prominence of a new, previously unknown potential interested party for the conclusion of the contract. This applies even if the person interested in the property himself appears at the seller's premises and introduces himself there. However, the real estate agent then no commission claim, If the interested party fails to disclose to the client that he has learned about the purchase transaction as a result of the real estate agent’s activities and therefore contacted the client (seller). the present case denied The Oh – as did the Court of Appeal – the right to appeal Estate agent’s commission from the mere order to mediate, since the Estate agent the sale of the property to the actual buyers, yes, exactly not mediated Hat.

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