Abstract (eng)
The purpose of this paper is the presentation of the introduction of the First Client Principle for with regard to residential lease agreements as established in the MaklerG-ÄG in March 2023. The aim is to determine whether the politically envisaged objective of reducing the costs for apartment seekers, which underlies the legislative proposal, can be achieved, and which legal consequences – especially relating to liability questions – will arise from this legal situation. Initially, the legal foundations of Austrian real estate agent law are presented, along with fundamental concepts necessary for understanding the identified issues. Subsequently, the requirements for the commission claim of real estate agents are explained as generally performance-based compensation, as well as the permissible rates of commission according to the ImmMV for real estate agents. The legal evolution of maximum commission rates for the mediation of residential lease agreements is also outlined. In the first section of the main part, the history of the MaklerG-ÄG is presented with a focus on the political background and legislative development. Furthermore, a discussion of the critique from the real estate industry and tenant representatives regarding the legislative proposal itself and the ministerial draft of the MaklerG-ÄG is undertaken. The second section provides a detailed presentation of the new § 17a MaklerG, including its scope and content. The aim is to present and discuss the new legal requirements for real estate agencies activities when it comes to residential lease agreements, taking into consideration the existing criticism of the new legal framework. Finally, the potential liability consequences of the First Client Principle are outlined. This includes differentiation between contractual and tortious liability, as well as direct and indirect liability of the real estate agent towards the client and third-party apartment seekers. Finally, the standard of liability to be applied shall be discussed.