Brokerage fees curbed

In recent years a practice has developed that a tenant for his new home must pay the rental agent a brokerage fee of usually one month's rent. The fact that the tenant found the house himself, for example through the Internet, would not detract from this payment obligation. A recent Supreme Court ruling has put an end to this practice. Moreover, the law on this point will soon be amended in favor of the tenant.

Serving two lords

Anyone who mediates in the conclusion of a contract, acting on behalf of both contracting parties, must take into account the legal regulation on conflicts of interest. These regulations stipulate, among other things, that the mediator is not entitled to receive a salary from the tenant when mediating the rental or leasing of real estate. Despite this prohibition, mediation fees were charged in similar cases. The tenant was at fault in this. Not paying was not an option for the tenant because he would not be able to rent the property.

The lower courts have ruled differently on this issue in recent years. For this reason, a subdistrict court judge in The Hague submitted a preliminary question to the Supreme Court. The case involved an intermediary agency that offered housing for rent on its website. You had to register with the agency as a house seeker before you could view the property. Upon registration, general terms and conditions were declared applicable which, among other things, stipulated that a brokerage fee in the amount of one month's rent would be payable if a rental agreement was concluded.

The (legal) question

The question before us was whether the prohibition on charging mediation fees to the tenant also applies if a landlord offers a property for rent on a mediation agency website and does not owe any consideration in return.

The Supreme Court ruled that in this case there was also a mediation agreement between the landlord and the intermediary and therefore no brokerage fee had to be paid by the tenant. Thus, the existence of a brokerage agreement does not require the landlord to actually pay the intermediary.

This is only different if the intermediary can prove that the website functions as an "electronic bulletin board. This means that the intermediary does not make it impossible for the prospective landlord and tenant to contact each other directly and without the intermediary's intervention in order to come to the conclusion of a rental agreement.

Ban also on room rentals?

The above ban on charging mediation fees currently does not apply to mediation for room rentals (so-called non-self-contained housing). However, this will change. A bill is currently pending that will amend the law in such a way that the prohibition of serving two gentlemen also applies to room rentals. Click(https://www.internetconsultatie.nl/bemiddelingskosten ) for this bill.

Tenant money back?

If brokerage fees were paid to an intermediary for the rental of a property, this amount can be recovered from the intermediary for up to five years.

What to do as a mediator?

Thus, brokerage fees may only be charged to the tenant if you, as a mediator, work exclusively for the tenant. A mediator must then, for example, search for a property on behalf of the tenant. Thus, it is certainly not impossible for an intermediary to charge a commission to the tenant in the future, but the business model must be adjusted.