Maklerprovision & Bestellerprinzip: Who Pays? (2026)
Maklerprovision & Bestellerprinzip: Who Pays?
You do, whoever engages the agent pays them (§ 2 Abs. 1a WoVermRG).
Instruct an agent to let the flat and the fee is yours. Shifting it to the tenant is void (§ 2 Abs. 5 WoVermRG) even with their signature, and the agent risks a fine of up to €25,000 (§ 8 WoVermRG).
§ 2 Abs. 1a WoVermRGIn 60 seconds
Since 1 June 2015 residential letting follows the Bestellerprinzip: whoever engages the agent pays them (§ 2 Abs. 1a WoVermRG).
The tenant owes the fee only where they themselves, provably, instructed the agent and the agent obtained the flat solely because of that instruction.
Where the agent already had the flat on their books or received it from you, the tenant pays nothing, even if they contacted the agent and viewed it.
A clause shifting the fee to the tenant is void (§ 2 Abs. 5 WoVermRG); additional viewing or handling fees are impermissible (§ 3 Abs. 3 WoVermRG).
On a sale to a consumer the halving rule applies rather than the Bestellerprinzip since 23 December 2020 (§§ 656c, 656d BGB), and the agency contract needs text form (§ 656a BGB).
What the law says
A letting agent may demand a fee from the person seeking a home only where they obtained the landlord's instruction to offer the property solely because of that person's search instruction. Whoever engages the agent pays them, for residential lettings since 1 June 2015. Working translation; the German original is the binding text.
Letting or selling: who pays?
The Bestellerprinzip covers letting only.
| Point | Letting | Selling (consumer) |
|---|---|---|
| Principle | the engager pays | both sides split it |
| Provision | § 2 Abs. 1a WoVermRG | §§ 656c, 656d BGB |
| You pay | as a rule, all of it | as a rule, half |
| Form of contract | — | text form (§ 656a BGB) |
The BGH has recently strengthened the halving rule: it applies where a third party concludes the agency contract, and to a single-family house with a small commercial element (BGH, 06.03.2025, I ZR 32/24).
Related: Drawing up a tenancy agreement.
What it means for each side
- You owe nothing where the flat was advertised.
- Do not sign a search instruction just to be allowed to view.
- Reclaim anything wrongly paid in writing (§ 812 BGB).
- You do not have to pay extra fees.
- Budget the fee as a letting cost: it stays with you.
- Drop shifting clauses; they are void and only create disputes.
- Do not let the agent charge viewing fees.
- On a sale, check the halving rule and the text-form requirement.
Common mistakes
Void under § 2 Abs. 5 WoVermRG, even with the tenant's signature.
If the agent already had the flat on their books, it changes nothing about who pays.
Viewing, registration and handling fees are impermissible (§ 3 Abs. 3 WoVermRG).
Breaches can cost the agent up to €25,000 (§ 8 WoVermRG).
What to do next
Establish who engages the agent, for a letting that is as a rule you.
Budget the fee into your letting costs.
Take shifting clauses and extra fees out of the contract.
On a sale, observe the halving rule and text form.
Frequently asked questions
Does the landlord have to pay the Maklerprovision?
For rented residential space, the Bestellerprinzip under § 2 Abs. 1a WoVermRG has applied since 1 June 2015: whoever commissions the Makler pays them. Since the landlord engages the Makler to let the flat, the landlord bears the Maklerprovision. Only in the rarer case where the tenant gave the Makler their own search instruction, and the Makler then sourced a flat not already in the landlord's listing, may the Makler charge the tenant.
How high can the Maklerprovision be for a rental?
It is capped at a maximum of two months' rent plus Umsatzsteuer (VAT, 19 %) under § 3 Abs. 2 WoVermRG. The basis of calculation is the Nettokaltmiete (net cold rent), so without Nebenkosten. This cap only matters in the case where the tenant legitimately owes the commission at all. Extra charges, for example for viewings or paperwork, are not permitted under § 3 Abs. 3 WoVermRG.
Can I pass the agent's fee on to the tenant?
No. An agreement that shifts the commission for a Makler engaged by the landlord onto the tenant is void under § 2 Abs. 5 Nr. 2 WoVermRG. Anyone who tries it anyway risks a fine of up to 25,000 euros (§ 8 WoVermRG).
Does the Bestellerprinzip also apply to selling a house?
No. For sales of Eigentumswohnungen (condominium units) and Einfamilienhäuser (single-family houses), the Bestellerprinzip does not apply; since 23 December 2020 a 50/50 split of the agent's fee applies under §§ 656a–656d BGB. If only one party engaged the Makler, that party can pass on at most half to the other, and only after it has demonstrably paid its own half (§ 656d BGB).
Who pays the Makler when an Einfamilienhaus is sold?
If the Makler acts for both sides, each party owes exactly half (§ 656c BGB). With one-sided engagement, the commissioning party may pass on at most half to the other, and only after paying its own half (§ 656d BGB). The level of the commission is not fixed by law; in many federal states the total commission is around 7.14 % including VAT, which buyer and seller share. The exact level varies by region and by agreement.
Does the Maklervertrag have to be in writing?
For the sale of a flat or Einfamilienhaus to a consumer, the Maklervertrag (agency agreement) requires Textform (text form, e.g. email) under § 656a BGB; an oral contract is void. For rentals there is no general form requirement, but the tenant's search instruction should be documented in Textform for evidence.
This page gives general information as at the date shown. It does not replace legal advice on an individual case.