Maklerprovision & Bestellerprinzip: Who Pays? (2026)

What does the Bestellerprinzip mean?

The Bestellerprinzip (the "whoever orders pays" rule) is a simple one: whoever commissions the Makler (estate agent) pays them. For the letting of residential space it has applied since 1 June 2015 and is set out in § 2 Abs. 1a WoVermRG (Wohnungsvermittlungsgesetz, the law governing housing agents).

The load-bearing fact first: since you, as the landlord, normally engage the Makler to let your vacant flat, you are the Besteller (the party who placed the order) and you bear the Maklerprovision (agent's commission). You generally may not charge the tenant for it.

Alongside this sits a completely separate regime for property sales. There the Bestellerprinzip does not apply; instead a 50/50 split of the agent's fee applies under §§ 656a–656d BGB (in force since 23 December 2020). The two areas are often confused; this guide covers letting first and sales second.

Letting: who pays the Makler?

Under § 2 Abs. 1a WoVermRG, the Makler may charge the housing seeker (i.e. the prospective tenant) a commission only if

1. the Makler acts solely on the tenant's own search instruction (in Textform, i.e. text form such as email), and
2. the Makler then sources a flat that they did not already have on offer under a mandate from the landlord.

In practice that is the exception. The normal case: you, the landlord, want to let your flat and engage the Makler. That makes you the Besteller, and you pay the commission yourself.

Achtung: An agreement that shifts the commission for a Makler engaged by you onto the tenant is void under § 2 Abs. 5 Nr. 2 WoVermRG. Breaches are an administrative offence and can be fined up to 25,000 euros (§ 8 WoVermRG). Disguised workarounds too, for example a "processing fee" or an inflated Ablöse (key-money payment for fixtures), carry this risk.

How high can the commission be at most?

For the rare case where the tenant legitimately owes the commission, the amount is capped. Under § 3 Abs. 2 WoVermRG the maximum commission is two months' rent plus statutory Umsatzsteuer (VAT, 19 %).

The basis of calculation is the Nettokaltmiete (net cold rent) — the bare cold rent without Nebenkosten (operating costs) or Betriebskosten. The Makler may not charge anything on top (§ 3 Abs. 3 WoVermRG): no registration, paperwork or viewing fees and no reimbursement of expenses.

Which properties does the Bestellerprinzip cover?

The Bestellerprinzip under the WoVermRG applies only to residential space. The key distinctions:

Property / situation	Bestellerprinzip (WoVermRG)?
Letting a flat to private individuals	Yes
Furnished flat / subletting of residential space	Yes (incl. the cap under § 3 Abs. 2)
Commercial property / commercial lease	No — freely negotiable, often the tenant
Sale of a condominium unit / house	No — §§ 656a–656d BGB (50/50 split)

For commercial property the WoVermRG expressly does not apply; there the parties remain free to agree terms, and the tenant often still pays.

Successor tenants and commission

A departing tenant whom the landlord has authorised to find a successor may, in some circumstances, count as an "other authorised party" within the meaning of § 2 Abs. 1a WoVermRG. That affects who is regarded as the Besteller of the Makler. If you task a tenant with finding a successor, set out the mandate and the cost question clearly.

Sales: 50/50 split instead of Bestellerprinzip

If you sell an Eigentumswohnung (condominium unit) or an Einfamilienhaus (single-family house) to a consumer, the Bestellerprinzip does not apply; the 50/50 split of the agent's fee does. The basis is §§ 656a–656d BGB, in force since 23 December 2020.

• § 656a BGB — The Maklervertrag (agency agreement) requires Textform. An email suffices; an oral or implied contract is void (§ 125 S. 1 BGB), and any commission nonetheless paid can be reclaimed.
• § 656b BGB — The protective rules apply only where the buyer is a consumer, i.e. buys privately.
• § 656c BGB — If the Makler acts for both sides (Doppeltätigkeit, dual agency), each party owes exactly half. If the Makler waives the commission against one side, it may not bill the other.
• § 656d BGB — With one-sided engagement, the commissioning party may pass on at most half to the other, and only after it has demonstrably paid its own half.

The 50/50 split applies only to condominium units and single-family houses (including those with a granny annex). Excluded are Mehrfamilienhäuser (apartment buildings), plots without a residential building, commercial properties and buyers who are not consumers.

The level of the commission is not fixed by law and is freely negotiable; in many federal states the total commission is around 7.14 % including VAT, which buyer and seller share. The exact level varies by region and by agreement. Only the split, not the rate, is prescribed by law.

Common mistakes

• Writing the agent's costs into the Mietvertrag (lease). A clause that shifts the commission onto the tenant is void under § 2 Abs. 5 Nr. 2 WoVermRG.
• Hiding the commission in the Nebenkosten or as a "processing fee". Such workarounds are not permitted and carry a fine (§ 8 WoVermRG).
• Calculating on the gross rent. The basis for the cap is the Nettokaltmiete without Nebenkosten (§ 3 Abs. 2 WoVermRG).
• Confusing letting and selling. For sales the 50/50 split under §§ 656a–656d BGB applies, not the Bestellerprinzip.
• Concluding the Maklervertrag only orally when selling. Without Textform it is void under § 656a BGB.
• Not paying your own half first when selling. Passing the cost to the buyer is permitted only after you have paid your own half (§ 656d BGB).

HausMaus makes this easier

HausMaus generates your Mietvertrag with currently valid clauses, so no impermissible shifting of the commission onto the tenant ends up in the contract. All your letting documents — from the Maklervertrag to the Mietvertrag to the handover — sit together in the digital Mietakte (rental file) and are to hand if a dispute arises. Under the Bestellerprinzip you bear the commission yourself as the landlord; HausMaus keeps the letting cleanly documented and legally organised around that. Wohnen, geregelt. ("Home, handled.")