Estate agent fee despite not renting the place - Germany

Hi all,

After 2 weeks in Germany my wife and I are already on the receiving end of some particularly nasty treatment by a Makler.

In short, we have been sent an invoice for the Maklergebühr on a place we have not rented and did not make any written application for, and I am concerned that we are being forced into making the payment because we don't know what our legal rights are.

The situation goes like this: we contacted a makler about an apartment advertised on Immobilienscout24. We were sent an appointment form and some AGBs. We went to the apartment, met the Makler, and had a look around. The place seemed nice enough, so later that day we emailed the Makler saying we were interested in the place and asking for an application form. The same day, we were offered another apartment, which was much nicer, and which we decided to take. We then called the first Makler, saying that we weren't going to proceed with our application. The Makler then (on the phone) had a brain explosion (to my wife, a native speaker) and said that we'd made an offer and his AGBs gave him the right to then charge us the Gebühr. Then he hang up.

So now we have received an invoice for one months rent plus MwSt. Furthermore the invoice says that if we don't pay within 3 days, we will incur further fees.

We looked again in detail at the AGBs. Buried on the second page, it says that any expression of interest to the Makler, even verbally, is binding, and withdrawl of that interest incurs one months rent fee. We never signed a single document with this Makler.

So my questions are many, but firstly: is this kind of clause in a Makler's AGBs even legal? It seems bizarre, that someone can turn what should be a written contract into a purely verbal one. If I had been aware of the full meaning of these AGBs, I would never have gone to view the apartment in the first place. Does a Makler have a legal right to impose these kind of conditions, and also to require payment within 3 days?

Any help appreciated. This is very urgent given the 3 day deadline for payment. Our next port of call is the local Mietverein, however my wife (the German speaker) is so upset by this whole episode I'm not sure how we're going to get on. Any suggestions about alternate courses of action also welcomed. Should we call in a lawyer, or would that likely cost us more than €640 (the amount at stake)? Should we go to the newspaper? Can we get this Makler blacklisted somehow, or does that make us liable for libel suits?

thanks in advance.. however this works out, I'll be sure to add a good story to the "Maklers are scum" thread.

Certainly not expert advice here, and surely someone will comment further, but isn't there a time-limited right of rescission here for something like this, even for a signed contract? Also, you didn't even fill out the application form, which might suggest that this was not a done deal anyway since there was obviously no acceptance and approval of an application by the landlord.

EDIT: can you quote the specific wording used in the AGBs?

Nothing in writing?

Any witnessess except you and your partner?

Then lie. Say you never ever not even once showed any expression of interest.

I had a similar experience when buying my house but just told the guy on the phone exactly that. Never got a bill and never heard from him again.

THIS IS NOT LEGAL ADVICE and is worth exactly the amount you paid for it. I still think it would work though

Ah bollards, didn't notice the bit about the e-mail. Sorry.

They sent an email expressing interest, Steven.

Anyone know what the BGB says about something like this?

He has proof that they showed interest...

EDIT: Conquistador beat me

It is not unusal for Germans to have wholly illegal clauses in their contracts. This is why there's always a clause saying that if any part of a contract is found to be illegal this does not invalidate the whole contract.

Write her a letter rejecting her invoice on the grounds that her AGB are not acceptable, and would not be accepted in a court of law. The 3 days is also bullshit, but for piece of mind you should reject her invoice asap. Once you've rejected it, she has to demonstrate why its valid. you innocent until she proves you guilty.

She might scream lawyer at you, but won't take it to court, if she's guaranteed to lose.

Here is the relevant paragraph from the Makler's AGBs:

"Andere individuelle Gebühren- z.B. ein Dienstleistungsentgelt bei Rücktritt von einer Kaufzusage oder Reservierungsvereinbarung sowie Rücktritt von der Mietzusage werden mit Eintritt des Ereignisses fällig und zahlbar. Bei Rücknahme einer - auch mündlich - erteilten Kaufzusage bzw.Mietzusage aus Gründen, die der Interessent selbst zu vertreten hat verpflichtet sich dieser gegenüber dem Makler zur Zahlung einer Aufwandsentschädigung i. H. v. 20 % der bei Verkauf fällig gewordenen Maklerprovision bzw. einer Monatskaltmiete bei Vermietung zzgl. gesetzlicher Mehrwertsteuer. Bestreitet der Interessent seine mündliche Zusage, so trägt er die Beweislast dafür, dass eine solche Zusage nicht erteilt wurde."

And did she verbally advise you she had unusual AGBs. Did you sign them?

You did not accept her AGBs, nd they are in all probability unenforcable. It is a common tactic to try and scare you by threatening lawyers and court, and if 30% of her non clients pay up, its very nice business, basically money for nothing.

Once you've rejected her invoice, she has to prove her invoice is valid, so just go ahead and reject it.

How damages could be reasonably claimed here is beyond me given that they had not even applied and there was no guarantee that they would be the ones chosen for the apartment. The Makler hasn't lost anything as far as I can see.

We didn't sign ANYTHING, so the question is whether we implicitly accepted the AGBs by going to the appointment. I guess its also questionable whether an offer was even made to us. Certainly, the form we were sent after expressing interest in our email was only an application, and not an offer.

The BGB says:

So according to the BGB a Makler can only ask for his fee, if you actually rented the place. He can ask to be compensated for his expenses if this is written into his AGB. But according to what I found in other sources on the web he would have to explicitly explain this expenses and he cant ask to be compensated for his time. It certainly wouldnt add up to 600€.

It´s been a while since I had to deal with civil law, so I am not sure if one could be exempted from this regulation by an AGB. But then again I dont see why the potential tenant should pay a fee anyway. If the Makler put up this ad for the appartement, then he is working for the landlord, isnt he?

An expression of interest is hardly a "Reservierungsvereinbarung" or "Mietzusage" - particularly as she hadn't told you that you got the property yet. I mean how can you accept a property that you hadn't even been offered yet??

Tell her to go fuck herself. Or better still, kill her and dump her body in a vat full of acid...The less Maklers there are, the better.

She's got a pretty sweet gig. If she gets enough people to take a look at a flat and smile, she's rolling in cash. Money for nothing is right. What a scam artist.

Send her a link to this thread

glad to hear you are going to the Mieterverein Bleater.

bohemka, yeah, imagine the Makler shows 5 people the flat none of them take it and he pockets 3000€.