Court Rules Tenants’ Right of First Refusal Does Not Require Full Broker Commission
Berlin court rules tenants with a right of first refusal do not have to pay full broker commission, reinforcing consumer protection in property sales.
The Berlin appellate court has held that tenants who exercise their statutory tenants’ right of first refusal are not automatically liable for the seller or buyer’s full broker commission, delivering a significant consumer-protection ruling for flat purchasers. The decision, handed down by the Kammergericht Berlin on 5 February 2026 (case no. 10 U 52/24), struck down a contract clause that attempted to shift the entire commission burden to tenant-buyers. The ruling affirms that the usual legal expectation — that seller and buyer share broker fees — cannot be bypassed by special contractual provisions imposed on consumers.
Facts of the Sale and Contract Clause
A Berlin multi-family building sale triggered the dispute when a real estate company bought the property and the purchase contract stated that only the buyer would pay the broker commission. The contract further contained a clause saying that if a tenant later entered the transaction by exercising a statutory right of first refusal, that tenant would assume a proportional share of the commission. Two tenants subsequently exercised their right and elected to buy their individual flats. The listing broker then demanded nearly €50,000 in commission from the tenant-buyers.
Court’s Legal Reasoning on Consumer Protection
The Kammergericht rejected the broker’s claim and found the clause unlawful under consumer-protection principles applicable to residential property sales. The court emphasized that purchasers of condominiums or single-family homes are generally protected as consumers and may not be compelled to bear the full broker fee alone. According to the judgment, the common practice of apportioning broker costs between seller and buyer — often described as a half-splitting principle — serves to protect consumers and must not be circumvented by contract clauses that impose disproportionate burdens.
Application to Tenants Exercising Their Statutory Right
The court underlined that it was undisputed all parties were aware tenants had a statutory right of first refusal and that those tenants would be entitled to consumer protection. Despite that awareness, the contract attempted to saddle tenant-buyers with the full financial consequences of the broker agreement. The court found this outcome inconsistent with the protective purpose of consumer law and declared the clause ineffective as applied to the tenant-buyers. The decision therefore preserves the tenants’ standing as consumers when they step into a purchase triggered by their statutory pre-emption right.
Financial and Market Implications for Brokers and Sellers
The ruling restricts the ability of sellers and brokers to draft contract language that transfers full commission obligations onto consumers in situations where a consumer steps in after an initial sale. Brokers and sellers involved in residential transactions must ensure their agreements comply with consumer-protection norms and the prevailing expectation that commission costs are shared. The decision may prompt sellers and brokers to revisit fee arrangements and disclosure practices when properties are sold where tenants hold pre-emption or first-refusal rights.
What This Means for Tenants and Future Sales
For tenants, the decision strengthens protections when they purchase under statutory pre-emption schemes and reduces the risk of unexpected, large commission claims after exercising the right. For buyers and sellers in similar circumstances, the judgment serves as a clear reminder that contractual attempts to avoid statutory or regulatory cost-sharing can be invalidated by courts. Legal advisers and market participants should take note that clauses seeking to shift consumer costs must be scrutinized against the consumer-protection framework reflected in this ruling.
The Kammergericht Berlin’s judgment in case 10 U 52/24 thus restores the expectation of fair cost allocation in residential property deals involving tenants’ rights of first refusal, reinforcing that statutory consumer safeguards cannot be overridden by tailored contract clauses.
