Not every commission invoice is justified. For rental flats, the landlord usually pays under the Bestellerprinzip, and even if you have to pay once, there are clear upper limits and exclusionary reasons. This guide shows you when a commission is unlawful, how to recover amounts you paid in excess and which warning signs you can already recognise during the viewing.
When the estate agent may not demand a commission from you
1. The landlord was the first client. If the landlord commissioned the agent first, a commission may only be agreed with him. A commission agreement with you is then invalid [S1]. The same applies if agent and landlord or property management are intertwined, if the landlord deliberately does not commission so that you pay, or if the flat was advertised with his consent [S1].
2. Self-dealing (Eigengeschäft). If the agent himself becomes your contracting party, for example because he owns the flat, he is not entitled to a commission. This also applies if the contract is economically equivalent to the agent concluding it himself [S2] – for example, when the same people stand behind the agency and the landlord company [S8].
3. Concealed close relationship (Verschwiegenes Naheverhältnis). If there is any other familial or economic close relationship between agent and landlord that could impair your interests, the agent only has a claim if he informs you of this without delay [S2]. Towards consumers, this close relationship must already be listed in the written overview before concluding the agency contract [S3]. A merely general note of a “possible” close relationship is, according to case law reported by the Arbeiterkammer Wien, not sufficient [S8].
4. The tenancy agreement did not come into effect validly. The commission only arises on the valid conclusion of the mediated contract [S4]. If you withdraw from your offer in good time, the commission will generally also lapse (see below).
If the commission was too high
If you must exceptionally pay, the commission for open-ended or contracts longer than three years may be at most two, and for shorter fixed-term contracts at most one gross monthly rent, each plus VAT [S5]. The VAT on the rent is explicitly not part of the gross rent [S6].
Illustrative example (fictitious): Base rent 760 euro, operating costs 140 euro, plus 10 percent VAT on the rent (90 euro). Correctly calculated the gross monthly rent is 900 euro, so the maximum commission for an open-ended contract is 2 × 900 + 20 percent = 2.160 euro. Someone who wrongly assumes 990 euro reaches 2.376 euro – 216 euro too much.
If an agent violates essential duties, for example his duty to inform, you can also demand that the commission be reduced and, if applicable, claim damages [S7].
Warning signs of unscrupulous providers
- Deposit or advance payment on the commission, for example already at the viewing: An agent has no entitlement to this [S4].
- Fees for viewing, credit check or handover protocol, although you do not owe a commission – such agreements are invalid [S1][S9].
- Commission despite advertisement: If the agent advertised the flat with the landlord’s consent, you may not be charged a commission [S1].
- No written cost overview before the agency contract [S3].
- Pressure to sign immediately under a “reservation” or rental offer. An offer is generally binding [S10].
- Invoice based on the total rent including VAT or without a comprehensible breakdown.
- No apparent trade licence: You can enquire with the competent professional association of the Wirtschaftskammer whether a company is authorised as an estate agent [S11].
Anyone who unlawfully demands or accepts a commission or other payment from flat-seekers commits an administrative offence punishable by a fine of up to 3.600 euro [S1]; if it also falls under § 27 Abs 5 MRG, the penalty range extends up to 15.000 euro [S13].
Withdrawal from the offer as the first remedy
If you signed the rental offer on the day of the first viewing and you need the flat for your urgent housing needs, you as a consumer may withdraw within one week. The week only begins once you have received a copy of your declaration and a written notice; the right expires at the latest one month after the first viewing [S12]. If you send the withdrawal to the estate agent, it also applies to the agency contract [S12]. No deposit may be validly agreed until the end of the withdrawal period [S12].
How to demand your money back
- Collect documents: Listing (screenshot), exposé, agency contract, offer, invoice, proof of payment, e‑mails.
- Check connections: Who is behind the estate agency and the landlord? Company register extracts help determine whether a self‑deal or a link exists [S8].
- Seek advice: The Arbeiterkammer, tenants’ organisations, Konsumentenschutz or a solicitor can provide an assessment [S8].
- Claim in writing: Demand by registered letter that the agent transfers the amount by a specific date, and briefly state why the claim does not exist.
- Initiate proceedings: If he does not pay, the route is to court. For flats within the full scope of application of the MRG, the repayment of prohibited payments can also be applied for in the non-contentious housing procedure – in municipalities with a conciliation body, first there [S13][S14][S15].
Deadlines and limitation
For flats within the full scope of application the MRG specifies a ten‑year reclaim period for prohibited payments under § 27 para 1 – these include, for example, payments without equivalent counter‑performance or clearly excessive brokerage fees [S13]. For other constellations the Maklergesetz has no separate reclaim period; the general rules on limitation then apply, whose application must be examined in the individual case. Therefore act as quickly as possible while receipts and recollections are fresh.