Even a wrong abbreviation in the synopsis or a quick typed praise for the tax advantages of a property can be real estate agents' undoing. Because numerous formulations can be warned. The most common pitfalls for real estate professionals - and how to avoid them.


"Apartment for rent - tax advantages of up to 20,000 euros possible!" That sounds good in the synopsis and is sure to attract many interested parties. But: unfortunately also warnings. Because with this formulation, the limit to unfair competition can already be exceeded. An invitation for warning lawyers. And when they send their mail, costs of several hundred euros quickly become due. Brokers should therefore carefully check their synopsis, general terms and conditions (GTC) and the brokerage contract for details.


Advertising - a reservoir for formulations that can be warned

According to the law against unfair competition (UWG), advertising must not be misleading or non-transparent. For example, those who pass things off as a matter of course as a unique selling point can be threatened with warnings. The most dangerous examples from exposés and advertising texts:


Thanks to Afa, tax advantages of up to 30,000 USD are possible” - advertising with tax advantages can be subject to a warning. Because: "If the specific prerequisites are not mentioned, this is considered to be misleading through omission," explains Koch.


"Investment property with risk-free return" - this advertising can also be warned. After all, there is no return without risk, according to the IVD's property law expert. Because it could also lead to loss of rent.


Built according to ecological criteria" - this is not how brokers should advertise. “First of all, no house is completely 'biological', because a steel beam, for example, can hardly be biological,” says Koch. "In addition, everyone understands something different by these statements, so that each of them is at least partially wrong." This is a misleading of the interested parties, due to ambiguity.


“Free advice, viewing and appraisal ” - this advertising can also be subject to warnings, as it advertises with self-evident principles. And those who advertise with obvious things are misleading consumers. Whether this is a violation of competition law or not depends on whether the consumer is given the impression that the entrepreneur stands out from the competition (BGH, Az .: I ZR 185/12).


"Advice and sales even on Sunday" - this advertising can be warned. Koch explains: “The consumer trade regulations of the federal states only allow viewing and advice on Sundays and public holidays in the real estate sector. And usually only for four hours. "


Examples of calculation of the return can also be subject to a warning. The reason: "So that the interested party can understand the return calculation, the broker must describe all the factors for the calculation and the exact calculation method," says Koch. That could be cumbersome: Am I only counting on the purchase price or on the ancillary purchase costs? Are the apportionable incidental costs deducted from the income? The legal expert warns: “A legally secure sample calculation is almost impossible, I would have to write an entire A4 page and at the end also explain that this is only an example. I would advise against it. "


Information on the size of the apartment is also not without risk for realtors. A warning can flutter into the house if the broker writes "qm" instead of "m²". "Because the word 'square meter' must be written out in full, or may only be abbreviated to 'm²' due to the unit ordinance," says Koch. In addition, an incorrect apartment size could be subject to a warning, because it serves with the purchase or rental
price as a calculation value for a m² comparison price.


Real estate prices for consumers

While the final price is usually easy to name for real estate for sale, there are a few details to consider when it comes to rental prices: In the case of rental prices, the amount is the final price that should be paid without the consumption-related costs that arise later. In addition: "The Housing Agency Act requires, when specifying the amount of the rent, an indication of whether or not operating costs are added to the rental price." Terms such as cold or warm rent are not sufficient.


Real estate advertisements for consumers can therefore, for example, be issued with a warning if:


only the price per square meter of the property is given (BGH, Az .: I ZR 210/98).

the price is quoted with "approx." information without specifying the final price.

the purchase price is only given in split form - for example, by listing the purchase price of the parking space separately.


Brokerage commission for consumers

The information on the brokerage commission can be fatal for real estate professionals if he gives net prices to consumers - such as private real estate buyers or landlords , for example:


For real estate for sale: "3 percent commission plus 19 percent VAT."

For rental properties: "2 basic rents plus VAT"

In the case of the broker's commission, the correct formulation depends, according to legal expert Koch from the IVD, on where the real estate advertisement appears. “Because in distance selling it must be pointed out that VAT is included. This is not the case with other types of advertising, since the total price must be stated for offers for consumers. "That means:


In the terms and conditions and for online advertisements , the commission is stated , for example: "7.14 percent incl. VAT"

In newspaper advertisements or in shop window advertising it says: "7.14 percent"


Formulations that can be warned in the brokerage contract and in the terms and conditions


Often the brokerage contract and general terms and conditions contain the same wording - but there are more frequent warnings for the latter. Because usually only brokers and clients see the contract. "But if the terms and conditions are on the homepage, you can see significantly more people there," says Koch.


“The client must refer all interested parties to the broker.” - The agreement of a referral obligation is inadmissible and can be issued with a warning if it has been agreed as a general terms and conditions clause. Because, according to Koch: "Interested parties would be forced into a commission obligation without there being a brokerage contract between the broker and the interested party." But: If this referral obligation is made as an individual agreement, it is permissible according to Koch.


“For all disputes arising from this contract, the place of jurisdiction for example city is agreed.” - Such a place of jurisdiction clause in the terms and conditions is ineffective and subject to a warning if the offer is aimed at consumers and not exclusively at commercial customers (§38 ZPO). Even the addition: “as far as legally permissible” does not make the agreement effective again. Because this formulation is incomprehensible for consumers. It is only effective if it becomes clear that the place of jurisdiction clause applies exclusively to commercial customers.


"Liability is excluded for errors due to willful intent or gross negligence." - Although brokers can limit liability, according to Koch, an exclusion of liability for willful intent or gross negligence is not permitted. And can result in a warning.


"Changes and additions to the brokerage contract must be made in writing. This also applies to a change to this requirement of the written form. ” - A written form clause on changes or additions to the brokerage contract is fundamentally inadmissible and can be issued with a warning. "This has been true since the BGB was changed on October 1, 2016 and switched to 'text form'", explains the legal expert.


"Offsetting against the commission claim is only permitted with an undisputed or legally established claim." - According to Koch, offsetting is generally permissible, therefore such a prohibition is inadmissible - and a warning can be issued.


"Foreknowledge be communicated from an object needs to the broker within 30 days." - Such is Vorkenntnisklausel abmah in the GTC. “It would only be conceivable as an individual agreement,” explains the IVD's legal expert. But: caution is advised here too. "Deadlines that are too rigid are declared inadmissible by the BGH."


"An ineffective clause will be replaced by a regulation that most closely corresponds to the economic interests of the contracting parties." - Such a formulation as part of a severability clause is not effective. "It is too vague so that it is not clear to the consumer what legal consequences this has," says Koch. Therefore, it could result in warnings.

Overall, severability clauses tend to be superfluous anyway. The consequences of ineffective terms and conditions are clearly regulated in the law: "If the provisions have not become part of the contract or are ineffective, the content of the contract is based on the statutory provisions" (§ 306 BGB).


Cancellation policy, legal notice and data protection declaration

Anyone who still uses an older cancellation policy could stumble across outdated formulations that can be warned. For example, a written form clause. If in doubt, real estate professionals should contact a specialist lawyer for competition law or the real estate association (IVD).


By the way: At finepropertiessd  san diego USA, real estate professionals can have the cancellation policy sent automatically . In the confirmation e-mail of the contact inquiries, a cancellation policy is then simply displayed as a predefined form. Brokers only have to activate this option once in " finepropertiessd  san diego USA ": Here's how it works .


Another legal minefield is the imprint : under certain circumstances, an abbreviated first name of the managing director can lead to warnings (, Az .: 20 U 125/08). Even incomplete information to the supervisory authority , or a lack of reference to dispute resolution platform of the EU can be warned. "A missing or inadequate data protection declaration is also dangerous, ".