Right of withdrawal for a real estate agent contract (Lexikon) when concluding a contract

The real estate agent contract is the first binding step in the property process for many buyers — and at the same time the most underestimated. Anyone who commissions a real estate agent via email, phone, or through an online listing legally enters into a distance selling contract and thus has a statutory right of withdrawal of 14 days under §§ 312g, 355 BGB. However, if the right of withdrawal is incorrectly or not provided at all, the period is extended to up to 12 months and 14 days. For investors, this means specifically: a real estate agent commission of several tens of thousands of euros can potentially be reclaimed for months after the contract is signed — even if the purchase has already been notarized. This guide explains the legal mechanisms, shows through real numerical examples when a withdrawal is worthwhile, and provides a clear decision matrix for investors.

Legal basis: When exactly is a right of withdrawal applicable?

The right of withdrawal in a real estate agent contract arises from consumer protection law and does not automatically apply to every contract. Three conditions must be cumulatively met for you as a buyer to be able to revoke the contract.

• Consumer status — buyer is an individual (§ 13 BGB)
• Business counterparty — the real estate agent acts commercially (§ 14 BGB)
• Distance selling or outside the business premises — no contract concluded in the real estate agent’s office
• Duty to inform — the real estate agent must explain correctly and in writing
• 14-day period — begins with receipt of the information
• Expiry — latest after 12 months and 14 days

Practice shows: Over 80 % of all real estate agent contracts are now concluded via email confirmation, through online portals such as ImmoScout24 or by telephone — almost always via distance selling. This means the right of withdrawal is generally automatically applicable, unless you sign the contract directly in the real estate agent’s office.

The 14-day period: When does it really begin?

Contrary to common belief, the revocation period does not start with the signing of the contract, but only upon receipt of a properly formatted revocation notice in written form. This notice must be in German, clearly legible, and unambiguous in explaining: who can revoke, how the revocation is to be made, to which address it should be sent, and what consequences it has.

If even one mandatory part of the notice is missing — such as the correct address of the real estate agent or the sample revocation form — the notice is considered not to have been given. In that case, the period is extended according to § 356 Abs. 3 BGB to a maximum of 12 months and 14 days.

This opens a significant negotiation window for investors. Anyone who wants to buy their first property or wishes to buy an apartment building should critically review the received notice — ideally with a specialist lawyer in rental law and homeowners’ rights.

Commission level and financial implications of a revocation

Since the reform of the real estate agent law on December 23, 2020 (§ 656c, 656d BGB), the principle of half-sharing applies when buying apartments and single-family homes: seller and buyer each bear half of the commission. With a usual total commission of 7.14 % gross, this means 3.57 % of the purchase price for both sides — an amount that quickly exceeds the annual net rental income of an Investment.

These amounts are directly entered into the calculate purchase ancillary costs section and significantly affect the gross yield of your investment. Anyone who wants to calculate the real estate agent commission should therefore always include the possibility of an effective right of withdrawal in the calculation — especially in the first 14 days after the contract is signed.

Waiving the right of withdrawal: the most common trap

Real estate agents regularly try to circumvent the right of withdrawal in practice through so-called waiver declarations — for example, by pressuring the customer to schedule a viewing or a notary appointment before the 14 days have passed. Legally, this is only effective under very strict conditions: the consumer must explicitly agree that the real estate agent’s services begin immediately, and he must confirm that he is aware of and is losing his right of withdrawal.

• Written form — separate declaration, not hidden in general terms and conditions
• Active consent — no pre-checked box
• Knowledge confirmation — consumer is aware of the loss
• Before performance begins — not possible retroactively

If even one of these prerequisites is not met, the right of revocation remains — even after notarization. The Federal Court of Justice has confirmed this in several rulings (among others, V ZR 8/21).

Scenario Comparison: When Is Revocation Worthwhile?

Not every revocation is economically sensible — especially if the purchase has already been notarized, the property remains with the buyer. Only the real estate agent’s contract is revoked, not the purchase contract. The following table shows three realistic scenarios.

As described in the guide Real Estate as an Investment, every reduction in purchase-related costs directly affects the calculation of the purchase price factor and thus the long-term return. A saved commission of 23,000 € with a rental yield of 4 % corresponds to an additional cash flow of about 920 € per year — over 20 years, this accumulates to over 18,000 €.

Tax treatment of the refunded commission

For rented real estate, the real estate agent’s commission is recorded as acquisition costs and depreciated over the useful life (usually 50 years, 2 % depreciation) — § 255 HGB i. V. m. § 7 Abs. 4 EStG. If the commission is refunded after a successful revocation, the acquisition costs must be reduced retroactively. This has two consequences.

• Depreciation correction — previously recorded depreciation must be partially reversed
• Assessment base revised — lower book value after correction
• Speculation period — remains unaffected (§ 23 EStG)
• Sale within 10 years — higher disposal profit possible

Anyone planning to sell the real estate again within the 10-year speculation period calculation period should consider the impact on the speculation tax calculator calculation: lower acquisition costs increase the taxable profit accordingly.

Action Recommendation: Decision Tree for Investors

The following structured approach helps you make a well-founded decision within a few hours — before the 14-day deadline passes.

1. Step 1 — Was the contract concluded via distance selling? If yes: continue
2. Step 2 — Is there a written right of withdrawal notice? Check for completeness
3. Step 3 — When was the notice given? Calculate the deadline from this date
4. Step 4 — Has a valid waiver been declared? In doubt: no
5. Step 5 — Does the commission exceed the costs? Usually yes from ~5,000 €
6. Step 6 — Send the withdrawal by registered mail with a return receipt

Even when reselling later — for example, if you want to Sell your property — the same protection rules apply to the then commissioned selling real estate agent. Therefore, the clean documentation of all instructions should permanently be kept in your investor file.

Can I revoke the real estate agent contract after the notary appointment?

Yes, this is generally possible if the 14-day period is still running or if the instructions were faulty. Revoking the real estate agent contract has no direct effect on the notarized purchase contract — the property remains in your ownership. You simply reclaim the already paid commission. However, courts examine such cases particularly strictly to determine whether a conclusive waiver through the notarization can be assumed. However, the burden of proof for proper instructions lies with the agent, which clearly strengthens your position as a consumer.

How do I formulate a legally secure revocation?

A specific form is not prescribed by law, but it is advisable to send a registered letter with a return receipt. Content-wise, a clear sentence such as: “I hereby revoke the one dated” suffices.[Datum]closed real estate agent contract regarding the property[Adresse]according to § 355 BGB.” Please also provide your complete contact details, the contract date, and the property designation. An explanation is not required — the right of withdrawal is unconditional. Send the letter to the address specified in the information provided or, if no address is given, to the business address of the real estate agent as stated in the imprint.

What happens to already performed real estate agent services?

If the real estate agent has already provided services before the end of the withdrawal period — for example, organized viewings or created property listings — he can only claim a proportional fee if you explicitly agreed to the early start of services (§ 357a BGB). Without this agreement, the full commission must be refunded, regardless of the actual effort made by the real estate agent. This regulation is particularly favorable for consumers and is one of the reasons why reputable real estate agents today document very carefully when and how they fulfilled their information obligation.

Back to the Wiki: Real Estate Lexicon