Brokerage Agreement

via

WhatsApp?

10. November 2026

by

Clemens Pfitzer

Can a chat history replace a real estate brokerage agreement if the law requires the agreement to be in writing? And who must prove that a relative was even authorized to negotiate on behalf of the owner? The Munich Higher Regional Court denied a broker a commission of just under 15,000 euros.

One Apartment, Two Brothers, and a Chat

An owner wanted to sell an apartment. His brother is a real estate agent and handled the sale. He was friends with the person who later acted as the broker. According to the agent’s account, the two agreed that he would look for a buyer. The sale price was set at 60,000 euros. Any amount above that, minus expenses, would go to him.

The apartment was sold on December 8, 2023, for 75,000 euros. The owner’s brother represented him in the purchase agreement. The real estate agent subsequently demanded 14,995.90 euros from the owner. The negotiations took place via WhatsApp. In some cases, it was not the broker himself but his girlfriend who was messaging the brother.

The owner denied everything. He claimed he had not granted his brother power of attorney for a brokerage agreement. He said his first contact with the broker was the broker’s invoice.

What does the law require for a real estate brokerage agreement?

According to the Civil Code, a brokerage agreement for the purchase of an apartment or a single-family home must be in text form. “Text form” is less stringent than “written form.” A signature is not required. However, a legible statement on a durable medium is required, in which the identity of the person making the statement is specified. A medium is considered durable if the recipient can store the statement and reproduce it unchanged. If this formality is not met, the contract is void.

The Munich Higher Regional Court dismisses the appeal

The Munich I Regional Court had dismissed the complaint in its judgment of May 13, 2026 (Case No. 3 O 13657/25). In a ruling dated October 22, 2026—Case No. 8 U 1651/26 e— the Munich Higher Regional Court announced that it would dismiss the appeal without an oral hearing. This procedure is intended for appeals that clearly have no prospect of success. The mediator did not comment on this. The Munich Higher Regional Court subsequently dismissed the appeal.

Why wasn’t the WhatsApp chat history enough?

The mediator did not fail because of the chat itself. The court initially agreed with him on several points. A brokerage agreement in written form does not require a single document. The statements from both parties may be contained in separate media, such as exchanged emails. An implied contract is also possible.

Another point was decisive. The essential elements of the contract had to be determinable from the messages themselves. These included the contracting parties, the subject matter, and, above all, the amount of the commission. Circumstances outside the messages could only be taken into account if the text itself provided a basis for doing so.

This was lacking. In the court’s view, the messages dated October 30, 2023, and November 2, 2023, contained no statement regarding a commission, not even by reference to prior agreements.

Nor did specific phrasing help. The statement that the incidental purchase costs would be paid by the buyer did not make it clear that this referred to the commission being requested. The remark that this was a “case similar to the one in Aalen” did not refer to a specific compensation model. A statement of account from January 2024 was issued after the purchase agreement was signed and said nothing about the content of the agreement.

The court expressly left open the question of whether WhatsApp messages can even satisfy the “written form” requirement. It did note, however, that none of the messages identified the sender. The name appeared only because the recipient had assigned a name to the phone number in his address book. This remark does not support the decision. However, it does indicate where future disputes might arise.

Was the brother authorized to act on behalf of the owner?

Even a contract in proper form would not have helped the intermediary. He could not prove that the brother was authorized to represent the owner. In the court’s view, anyone invoking a power of attorney must prove that it was granted and specify its scope.

The owner had told his brother to handle the sale and get the best possible price. This did not constitute authorization to enter into a real estate brokerage agreement with a third party. The brother is a real estate agent himself. The instruction should therefore be understood to mean that he was to find a buyer on his own, without compensation. Engaging a third party for a fee was not included in this instruction.

The mediator also claimed that the owner had confirmed the brother’s power of attorney during a meeting at a café. The chat history only showed an appointment with the brother. As evidence, the mediator offered to be questioned as a party to the case. The court did not allow this. The owner had not consented. An ex officio examination requires that the claim already be reasonably probable and that no other evidence be available. However, despite being ordered to appear in person, the intermediary had not attended the hearing before the regional court. Nor had he named the brother—who was a friend and had been present at the meeting—as a witness.

The court also rejected liability based on the principles of apparent authority. Such implied authority or apparent authority generally requires conduct of a certain duration and frequency. A single previous sale in Aalen was not sufficient. The fact that the owner accepted the purchase price did not constitute retroactive approval of the brokerage agreement.

Is there money to be had through indirect means?

No. The court rejected a claim for compensation for value under the law of unjust enrichment. The formal requirement is intended to protect a contracting party. This protection would be undermined if the real estate agent received his money through other means. Furthermore, the owner did not accept a service provided by the agent in exchange for compensation, but rather received free assistance from his brother.

For the same reasons, a claim for a commission under commercial law and a claim for reimbursement of expenses on the grounds of agency without authority were rejected. Nor did the court find the outcome to be wholly unacceptable. It pointed out that the broker might, under certain circumstances, have a claim against the brother if the latter had acted without power of attorney.

Conclusion

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