Maklergesetz: Government plans buyer principle for residential rentals

May 13, 2022 Benn-Ibler Rechtsanwälte

The Austrian Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) has submitted its draft for the introduction of the "Bestellerprinzip" (buyer's principle) for the brokerage of residential tenancy agreements for review. In the future, only the person who commissions the brokerage service will have to pay the commission.

Until now, flat seekers often had to conclude a brokerage contract before the broker (commissioned by the landlord) gave the address or contact details for a flat advertised through him/her. In practice, this often meant that tenants had to pay the broker's commission in full.

With the draft presented, a so-called "first commissioner principle" („Erstauftraggeberprinzip“) is now to be introduced. Pursuant to the new Section 17a para 1 of the Real Estate Agents Act, (Maklergesetz neu, MaklerG), the broker can only agree on a commission with the landlord if the latter is the first client to have commissioned the brokerage. Accordingly, the broker can only agree on a commission with the person seeking a flat if the tenant has commissioned him/her as the first client (para 2).

Furthermore, the broker also cannot agree on a commission with the person seeking a flat if

• the landlord has a share in the brokerage company or has a decisive influence on it and vice versa,
• the landlord has refrained from concluding a brokerage agreement so that the tenant, as the initial client, would be liable for commission, or
• the broker advertises a flat to be let with the landlord's consent or otherwise advertises it at least to a limited circle of interested parties (para 3).

Pursuant to para 5 agreements are invalid insofar as they

• oblige the tenant to supply other payments in connection with the brokerage or the conclusion of a residential tenancy agreement to the broker who is not entitled to commission or to the landlord, or
• obliges the tenant to supply other payments in connection with the brokerage or the conclusion of a residential tenancy agreement to the former tenant or to another third party without equivalent consideration.

Para 7 provides for fines of up to EUR 3,600.

BMJ, Draft (23.03.2022)