Free real estate agent separates from real estate switching enterprise – who may use the still open orders? – in the discussion with Dr. Schulte, attorney from Berlin.
If a free real estate agent is on the way on behalf of a real estate agency enterprise, then usually the commercial agency right (§ 84 to § 92 commercial code (HGB)) applies. This regulates the legal relationship between the commercial agent and the commercial estate. According to the HGB, the legal definition of a commercial agent is the following „A commercial agent is anyone who, as an independent trader, is permanently entrusted with brokering business for another entrepreneur (…) or concluding business on the latter’s behalf. A self-employed person is one who is essentially free to organize his activities and determine his working hours.“ § Section 84 (1) HGB. The commercial agent is therefore not an employee but a self-employed intermediary. In relation to the self-employed real estate agent, this means that the agent acquires customers (under the name of the company (the commercial agent)) and forwards the business to them. The purchase or sale of real estate is then handled by the trading stand and the broker receives part of the commission (cf. § 87 HGB).
Challenges in the separation between real estate broker and real estate company
Difficulties arise when there is a separation of the real estate broker and the real estate company. Under certain circumstances, transactions arranged by the real estate agent are then still in the pending phase. Pursuant to Section 87 (3) No. 1 of the German Commercial Code (HGB), the commercial agent is still entitled to commission even if he has brokered, initiated or prepared the transaction and the transaction has been concluded within a reasonable period of time. In most cases, however, the transactions in question are specified again in detail in a termination agreement, so that no misunderstandings can arise here.
But what if a broker approaches the company with a transaction – a brokerage agreement has not yet been concluded – and then a separation between the broker and the company follows?
May the broker, who is no longer committed to his previous trading status, now conclude a brokerage contract with the customer himself? Is the broker then allowed to use his knowledge acquired while working for the trading stand or does he violate principles of competition law in doing so?
If it has been expressly agreed in the termination agreement (customer protection clause) that this is prohibited, the broker should avoid this as far as possible.
It was decided by the Kammergericht Berlin – the Higher Regional Court of Berlin – (decision of 25.03.2011 5 W 62/11) that a commercial agent is subject to duties of loyalty. Even if the business relationship ends, the agent is not supposed to start a brokerage contract immediately after the end of the cooperation. However, this only applies if a customer protection clause has been expressly agreed in the termination agreement.
Professional opinion: Commercial agent equals ordinary businessman
In general, according to § 90 HGB, a commercial agent may not „exploit or disclose to others business and trade secrets entrusted to him or which have become known to him as such through his work for the entrepreneur, even after termination of the contractual relationship, insofar as this would contradict the professional view of a prudent businessman according to the overall circumstances.“ According to the Berlin Court of Appeal, however, a commercial agent who has left the company may, under certain circumstances, use knowledge acquired during his period of employment for his own benefit. However, he may only use information that he has retained in his memory. Thus, written documents from his employment period may not be accessed (see Kammergericht Berlin decision of 25.03.2011 5 W 62/1). This applies in particular if no brokerage contract has yet been concluded between the customer and the real estate company and the customer now approaches the broker in order to conclude a brokerage contract. In practice, this is a conclusive process, since personal contact with the broker plays a major role in real estate sales and the customer does not care whether his broker of choice acts as an intermediary for a company or acts as a broker himself.
Valentin Markus Schulte
Economist, stud. iur.
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The Kanzlei Dr. Schulte attorneys is successfully civil-legally since 1995 emphasis in the area of the Internet, Reputations- and competition right active. It represents country widely the interests of individual investors. Supplementary sender information with the Kanzleistandort you find in the imprint on the Internet side www.dr-schulte.de.