Austria: Elimination of the broker’s commission due to close relationship

 

The broker’s commission results from §§ 6ff MaklerG.

In accordance with the statutory provisions, the commission claim arises with the legal validity of the brokered transaction. Without a legally valid brokerage contract, the broker is not entitled to commission. It should be noted that the brokerage contract is generally not bound by any formal requirement, so it can be concluded orally, implicitly or in writing. If an interested party makes use of the broker’s services and does not object to it, case law generally considers the brokerage contract to be concluded.

In a recent case law (OGH 6Ob193/23k), the Supreme Court ruled that if there is no reference to the close economic or family relationship between the broker and the landlord, the broker is not entitled to commission and that the commission already paid can be reclaimed from the customer as a consumer within the meaning of the Consumer Protection Act by means of Section 1431 of the Austrian Civil Code. The claim for repayment of the commission paid expires within 3 years from the due date. As long as the customer has not become aware of the facts giving rise to the claim, the limitation period does not begin to run. The limitation period begins to run with knowledge of the facts.

In the original case, a real estate agent brokered a rented apartment including a fixed-term lease in Vienna to a consumer. The consumer paid the agreed brokerage commission of two gross monthly rents for this. The defendant was also the sole shareholder of Hausverwaltungs GmbH, which concluded the lease agreement on behalf of the property owner. The tenant was not informed about this close relationship in the sense of social interdependence.

According to the statements of the Supreme Court in this decision, in accordance with the case law, commission payments can be reclaimed in the event of a violation of Section 6 (4) of the Brokerage Act as an undue payment of a non-debt pursuant to Section 1431 of the Austrian Civil Code. Furthermore, the Supreme Court states that § 11 sentence 2 of the Brokerage Act on the suspension of the limitation period (the start of the limitation period) is to be applied analogously to the client’s claim for repayment, which is to be assessed here. Thus, the limitation period of the client’s claim for repayment is suspended as long as the client had no knowledge of the facts giving rise to the claim.

 

For further information, contact:

Fabian Kronberger, Lawyer

Zumtobel Kronberger Rechtsanwälte OG, Salzburg

e: office@eulaw.at

t: +43 662 62 45 00

 

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