In a recent judgment (Az. I ZR 28/22), the judges of the Federal Court of Justice (BGH) describe the cancellation policy in the brokerage contract of a subsidiary of the Bavarian savings banks as “contradictory” and “unclear” and therefore incorrect. The customer can thus revoke the assignment of the real estate agent and claim his money back, even though he bought the brokered property. A verdict that could also have consequences outside of Bavaria.
Check here for free whether you can benefit from the BGH ruling.
The savings banks work nationwide with specialized subsidiaries when it comes to brokering real estate. In Bavaria, this is the Sparkassen-Immobilien-Vermittlungs-GmbH (in short: Sparkassen-Immo), against which the judgment of the Federal Court of Justice has now been issued. In other federal states, the subsidiaries have similar names, and LBS also takes on this role in some cases. This double constellation is now becoming a problem in Bavaria.
Duplicate addressees of the revocation
In the present case, a couple had registered with the Sparkasse Erlangen as interested parties for a condominium. Some time later, the Sparkasse emailed us an offer and sent a link to an exposé that the customers could download. Together with the synopsis, they also received a cancellation policy. In this case, two possible addressees were specified in the event of revocation: both the savings bank and the subsidiary Sparkassen-Immo.
And this is where the BGH’s criticism comes in: the information given by different addressees does not give the consumer clear and unambiguous information about how to proceed with a revocation and when the revocation period begins. Consequence: The cancellation policy is ineffective.
Real estate agent must inform
The following applies to real estate agents in Germany: If the customer is a private consumer and the contract is concluded, for example, via the Internet or e-mail, the customer has a right of withdrawal and can revoke the assignment of the agent.
The broker is responsible for informing the customer of his right of withdrawal. Strict rules apply to this. If the real estate agent violates one of these rules, the cancellation period is extended from the usual 14 days to 12 months and 14 days. This applies even if the customer has acquired the property in the meantime and the agent’s commission has already been paid. In this case, a revocation by the customer means that the broker has to pay back the brokerage fee.
Savings banks in Bavaria affected
According to the current Federal Supreme Court ruling, this is likely to be the case for the Bavarian savings banks in a number of cases – possibly also for the savings banks in other federal states. As we understand it, the judgment means that most commission agreements with a Bavarian savings bank for the purchase or sale of a property that have been concluded in the past 12 months and 14 days can be revoked by the customer. Paid commissions are to be refunded. The only requirement is that the commissioning of the savings banks did not take place on their premises – then the customer has no right of withdrawal.
To what extent the judgment also applies to savings banks in other federal states can be checked by us on a case-by-case basis. We assume that the savings banks will not be happy about the forthcoming claims for reimbursement and will either appeal to the decency of the customers or refer to the many years of good cooperation. Consumers should not be impressed by this. Consumer law is no mercy and a BGH decision is a clear statement. If the savings bank refuses to recognize the revocation, then the path should lead to a specialist. Here, those affected can have it checked free of charge and without obligation whether there is an incorrect cancellation policy in their case.
The case is an example of how many real estate agents, even years after the introduction of the right of withdrawal, still fail to meet the requirements to inform their customers correctly. Large brokers, such as the savings banks, often struggle with details. Smaller brokers often forget the cancellation policy completely. Then your commission is at stake. Consumers should always have it checked to see whether they have been correctly informed – after all, it is usually a matter of several thousand euros.