Since 1 July 2023 the “bestellerprinzip” applies to the brokerage of rental apartments in Austria. For you as a prospective tenant this means: in most cases the landlord pays the commission. Here you can read in which exceptional cases you still pay, which maximum amounts then apply and how to check the invoice yourself.
The bestellerprinzip briefly explained
If the landlord – or someone authorised by him to do so, such as the property management – is the first to engage an estate agent to broker an apartment, the estate agent may only agree a commission with the landlord [S1]. A commission may only be agreed with you if you yourself engaged the estate agent first [S1]. That is why the law actually speaks of the “first principal”.
The rule applies to apartment tenancy agreements, irrespective of whether the Mietrechtsgesetz applies to the apartment in full, in part or not at all [S9]. Only cases in which an employer as tenant rents a service, in-kind or staff flat for its employees are excluded [S1]. The bestellerprinzip does not apply to the purchase of a property or to the rental of business premises [S9].
When you as tenant still pay
Typical is a search mandate: you give an estate agency instructions about which sort of apartment you are looking for, and the agency finds an apartment for you that it has not previously offered on the instructions of the landlord. Your obligation to pay commission is also excluded if [S1]
- the landlord or property management and the estate agency are connected by company law or have influence over each other,
- the landlord deliberately does not enter into his own agency agreement so that you have to pay, or
- the estate agent advertises the apartment or otherwise promotes it with the consent of the landlord.
The estate agent must record every agency agreement in writing or on another durable medium with a date. If he demands a commission from you, he must demonstrate to you that none of the exclusion reasons apply [S1].
Fictitious example: You see an apartment in an online advertisement from an estate agency and arrange a viewing. In this case the landlord as a rule has commissioned or consented to the advertisement – then the estate agent may not demand a commission from you [S1].
The maximum amounts if you owe commission
The limits are set out in the Immobilienmaklerverordnung. They are maximum amounts, not fixed prices – a lower commission can be agreed at any time [S2][S7].
- indefinite or fixed for more than three years: two gross monthly rents
- fixed for at most three years: one gross monthly rent
- estate agent is also the property manager: half of these amounts
- later extension or conversion to indefinite: additionally at most half a gross monthly rent
VAT is not included in these maximum amounts [S4]. Therefore 20 percent VAT is added to the commission [S10]. The halving for the property manager does not apply if the apartment is subject to condominium ownership and the principal is not the majority owner of the property [S3]. A follow-up commission may also only be up to the amount missing from the maximum amount taking into account the entire contract duration [S2].
How to calculate the gross monthly rent correctly
The gross monthly rent includes the base rent or subtenant rent, your share of operating costs and ongoing public charges, shares for special expenses such as the lift and a payment for rented furniture [S5]. VAT on the rent is not included [S5]. For flats whose rent is legally capped, heating costs are also excluded [S5].
Fictitious example: Base rent 700 euro, operating costs 150 euro, no furniture. The gross monthly rent is 850 euro; the 10 percent VAT on the rent is not included. For an indefinite contract the commission may be at most 2 × 850 = 1.700 euro plus 20 percent VAT, i.e. 2.040 euro. For a fixed term of three years it is at most 1.020 euro.
What an estate agent may not demand otherwise
- No advance payment: The commission only arises once the brokered tenancy agreement has come into effect. The estate agent has no entitlement to an advance payment [S6].
- No additional fees in cases where they are not entitled to charge you a commission: Agreements that oblige you to make payments to an agent who is not entitled to a commission or to the landlord are ineffective [S1]. This includes, for example, fees for viewing, credit checks or handover protocol [S9].
- No payment without consideration to the previous tenant or third parties [S1].
Anyone who demands or accepts a commission or other payment in violation of these rules commits an administrative offence; the fine is up to 3.600 euros [S1]. If the act also falls under the prohibition on transfer payments (Ablöseverbot) of the MRG, the higher penalty framework of that law applies.
If you, as a consumer, conclude an estate agent contract yourself, the agent must first give you a written summary in which they identify themselves as an agent and state all expected costs including the commission. Any familial or economic close relationship with the landlord must also be stated there [S8].
Tips before signing
- Ask who commissioned the agent first, and if in doubt ask to be shown proof.
- Do not sign a tenancy offer under time pressure. An offer is binding; if the landlord accepts it, the tenancy agreement is concluded [S11].
- Check every commission invoice according to the scheme above. The Arbeiterkammer offers an online calculator for this purpose [S7].
- Pay only after the contract has been concluded and request an invoice.
If you later realise that you have paid wrongly or too much, you can reclaim the money. How to do this is explained in the guide on unlawful estate agent commission.