What a broker must and may do
Advice and information are among the most essential duties of a real estate agent when concluding a contract.
Do you want to rent an apartment or sell a house? In view of the time involved, the complex legal issues and, last but not least, the financial aspects, many rely on the support of a real estate agent in this situation.
Various laws form the framework
The obligations that a broker must fulfill are regulated by law – namely
– in the Brokerage Act
– in the Real Estate Agent Ordinance
– in the Consumer Protection Act,
– in the Consumer Rights Directive Implementation Act (VRUG),
– in the Long-Distance and Outbound Transactions Act (FAG)
– and in the General Data Protection Regulation (GDPR).
In addition, there are separate rules of professional conduct of the Professional Association of Real Estate and Asset Trustees.
The Brokerage Act, for example, regulates, among other things, the duty to safeguard interests and exercise due care, as well as to provide clarification and information. “The mutual obligation to inform and clarify is the most essential point,” says AK housing law expert Walter Rosifka.
The contractual partners of the broker (seller or landlord, buyer or tenant) must not only be informed that the person concerned is a real estate agent. But also about the terms of the contract (e.g. amount of commission, any ancillary costs), the type of contract, terms and scope of services as well as the applicable right of withdrawal – and all this in writing.
Last but not least, real estate income tax on sales is also a topic of information. The broker must inform his contractual partner(s) of all circumstances that are essential for the assessment of the transaction to be brokered.
From age to condition
Interested parties must be informed by the broker about the size, age, condition and equipment of the property, the amount of operating and other costs, but also about any defects and disadvantages. If there is a close family or business relationship between the broker and the client, or if the broker works for both the seller and the prospective buyer at the same time, the broker must also communicate this before the brokerage contract is concluded. He must also be familiar with essential facts of the factual and legal situation.
Furthermore, he should be able to provide information about the buildability of a property and a zoning plan that has been valid for a longer period of time. And about whether the object is located in a flood zone, for example, or on a suspected area (= possibly contaminated soil). He should be familiar with the housing subsidy laws and their provisions.
But this is not the end of the information requirements: real estate agents must display the maximum amounts of commission permitted for brokerage in their business premises, in showcases, display windows and the like, with an explicit indication that these are maximum amounts, as well as information on other remuneration and the amount of sales tax.
Incidentally, the duty to provide information also applies to the seller: If the seller provides incorrect information to the broker, the broker is exempt from liability under certain circumstances. “If there is no reason to doubt the information, the broker may pass it on and is not required to verify it,” Rosifka said. Therefore, for the apartment seeker, it’s “ask, ask, ask, and ask the broker to verify all the information provided by the seller.”
There are also precise specifications for advertisements: In addition to the key data on the property, it must also be clearly recognizable that the advertisement was created by a real estate agent. originates In addition, if a purchase price is specified not only in cash but also with credit financing and if a down payment is required, the amount of the current repayments and the total amount must be clearly indicated. When brokering rental agreements, the total rent as well as its components (main rent, operating costs and value added tax) must be stated in the advertisement – unless a flat rent is offered.
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