You want to buy a property in Germany, but financing and document review are not yet complete. The intermediary company offers you a reservation for a fee. Before you pay for it, you need a clear answer to two questions: which service is actually being contractually promised, and what happens to your money if the purchase does not proceed? The name "reservation" does not answer either of these questions.
First translate the promised security
Our practical recommendation is to break the promise down into verifiable actions. Is only the company’s own listing temporarily deactivated? Are further enquiries being deferred? Is the owner side also involved and what has it committed to do? For what period does the commitment apply and what conditions attach to it?
A company can promise to perform a particular action itself. That does not automatically create a corresponding obligation on the part of the selling person. Ask explicitly about the participation and role of each party. The property you have already viewed may feel almost like it is bought. That impression must not replace the actual status of negotiations and contract.
What the German BGH decided
In judgment I ZR113/22 of 20 April 2023 the case concerned a pre-formulated paid reservation agreement that supplemented an existing estate agency contract. The BGH subjected it to review under the standard terms control (AGB-Inhaltskontrolle). The blanket non-refund without any material customer benefit or monetary consideration provided for in this case did not withstand that review; the fee had to be refunded. A separate contract sheet and a later conclusion did not exempt the collateral agreement from scrutiny. [BGH]
The exact scope is important: it does not follow for your own decision that any payment using this name would always be ineffective. The contractual content, classification and actual performance must meet the legal criteria. The judgment is a concrete basis for examining a corresponding constellation, not an automatic single-case decision on request.
Read repayment clauses before payment
Work through several possible outcomes. You do not obtain the financing. The owner side decides against the sale. An important document reveals a previously unknown obstacle. Or you give up your purchase project early. What contractual consequence applies in each case in the agreement, and is this provision effective?
If repayment is excluded without any distinction, that is a central point to examine in connection with the mentioned decision. Have it clarified before payment. A later offset against a commission does not automatically remove your risk of the purchase failing. Judge the complete wording; a friendly oral assurance should not remain standing alongside a differing written version.
Reservation period is not financing confirmation
Set out a realistic timetable: which property documents are still missing, what checks will the bank carry out and when is a reliable response possible? A paid period does not itself provide the missing prerequisites. If you consider any extension, ask again what it concretely achieves and which further costs are demanded.
Our editorial recommendation is not to make an amount already paid your main purchase argument. If new information speaks against the acquisition, you should continue to examine the purchase decision independently. Advice on reclaiming a fee can be obtained separately. A possibly disputable smaller amount should not justify an unresolved large commitment.
Treat the actual property purchase separately
The contract for the sale of land generally requires notarisation under § 311b Absatz 1 BGB. [KAUF] A payment for the reservation is therefore not equivalent to that. A contract heading does not remove the formal requirement either.
In the mentioned judgment the BGH expressly left open an additional formal invalidity of the reservation agreement because the AGB-law invalidity was already sufficient. [BGH] Do not therefore adopt from this case any allegedly finally decided general rule on form for all reservation models. For your agreement you need an examination relating to its actual content.
An illustrative example for your own decision
An interested person receives a form with a fee that is to be credited on later purchase but retained in every other outcome. The owner side has not signed the form and, according to the information, has still not given its own sales commitment. At the same time the financing bank is still missing documents.
Before signing the interested person asks about the parties involved, the service, the contractual basis and repayment. She has the clause examined in the full context and waits for the missing facts before deciding on the purchase. The example does not establish a ready-made repayment claim. It shows the sensible standard of action: understand the actual security, examine the cost consequences and decide on the property purchase independently of a reservation feeling.