You want to sell your flat or single-family house in Austria and receive an exclusive brokerage contract (Alleinvermittlungsauftrag). The decision concerns not only the promised advertising. It binds you to a brokerage office for a defined period and may contain special payment arrangements. This article is aimed at private sellers as consumers and helps with the review before signing.
Understand what the "exclusive" means
§ 14 MaklerG describes the exclusive brokerage contract as an obligation of the client not to engage any other broker for the transaction to be brokered. At the same time, the appointed office must endeavour to arrange the transaction to the best of its ability. The contract and any extension must be limited to an appropriate period. [AUFTRAG]
Our editorial recommendation: Ask to be given the entire proposed contract including annexes. Note precisely which property, which intended sale and which services are included. An exclusivity commitment should not be declared only with a promotional sentence. Discuss how viewings, feedback, price adjustments and notification of received offers are to be organised.
Check the specific term
For consumers, § 30c KSchG limits the agreed duration for brokering the sale or purchase of flats, single-family houses and suitable individual building plots in principle to a maximum of six months. In exceptional circumstances that significantly impede or delay brokering, a correspondingly longer period may be agreed. [DAUER]
Six months are therefore not a prescribed minimum duration for every contract. Check start, intended end and any extension against the actual document. If a longer commitment is justified by particular circumstances, these should be explained concretely. You must not uncritically classify other sale objects in exactly the same consumer framework.
Do not mention a private buyer only later
Perhaps a neighbour or an acquaintance has already shown interest. Clarify that status before concluding the contract. Which contacts actually exist, which exception should expressly be agreed if applicable and what scope would it have? An acquaintance mentioned casually and orally should not be treated as a clearly regulated exception.
The definition of the exclusive contract and a special payment rule for a transaction concluded by other means are two different questions. § 15 MaklerG permits, under its conditions, certain fee arrangements even without attributable brokerage success. For exclusive contracts paragraph 2 names additional cases, including a contract concluded by other means during the term. [VERGUETUNG] This does not imply that every private self-sale would automatically be free of charge, nor that a full commission would always be due without an appropriate agreement.
Also understand the case without a successful sale
Check which provision the contract contains for early termination, other brokerage, additional effort or a sale by other means. Have the distinction between success-dependent commission and special remuneration amounts explained. A heading such as flat-rate expense allowance does not answer its prerequisites.
Pursuant to § 31 KSchG, among other things the conclusion and extension of an exclusive brokerage contract as well as special agreements for lack of brokerage success in a consumer contract require explicit written form. [FORM] The validity of a particular clause and any further rights must be examined on the basis of their complete wording. This article does not set a blanket commission rate and does not deal with an individual right of withdrawal for a contract concluded outside business premises.
Example: An interested party from your circle of friends gets back in touch
Fictitiously, an acquaintance views the house before the engagement but does not decide. Later, during the term of the exclusive contract, she wishes to buy after all. The seller now checks the expressly agreed prior arrangement and the actual course of events, instead of concluding from the private acquaintance alone that the sale would be free of charge. If such a contact had been important in advance, its handling should already have been clearly discussed at the time of conclusion.
Decide cooperation and commitment together
Compare not only advertising channels or an estimated sale price. Ask who your contact person is, how you will be informed of the work status and which decisions remain with you. A well-explained activity helps cooperation; it does not guarantee a buyer at a particular price or time.
Keep the signed version and later amendments traceably. If you become dissatisfied during the term or want to sell yourself, first clarify the existing contractual situation. A new parallel engagement or a hasty contract termination should not be the first response to an unclear cooperation.