The question of liability is central for every real estate agent in Austria — and at the same time often underestimated. An information error, a concealed fact or a deficient purchase contract can not only result in loss of commission but also lead to claims for damages. This article provides an overview of the most important liability risks and how to address them.

Legal Basis: MaklerG and ABGB

The activity of real estate agents in Austria is primarily governed by the Broker Act (MaklerG) and the ABGB (Civil Code). Additionally, the professional and practice rules for real estate agents (professional code under GewO) apply.

Key obligations under MaklerG:

• § 3 MaklerG: Duty of care — the agent must protect the interests of both parties
• § 6 MaklerG: Duty of disclosure — all known material circumstances must be communicated
• § 30b KSchG: Consumer protection disclosure obligations for consumer contracts

What Is the Agent Liable For?

1. Incorrect or Incomplete Information

If an agent provides false information to the buyer or tenant — or conceals material defects that they knew or should have known about — they are liable for the resulting damage.

Typical cases:

• Incorrect floor area (measured vs. heated vs. usable area)
• Concealing known structural defects
• False statements about operating costs
• Incorrect information about zoning or land use designation
• Misinformation about ongoing legal disputes or encumbrances on the property

2. Breach of Disclosure Obligation

The agent must disclose all circumstances known to them that are relevant to the purchase or rental decision. The obligation to actively investigate only exists to a limited extent — but what the agent knows or should have known with due diligence must be passed on.

Rule of thumb: It is better to ask and document once too often than to classify information as “not relevant”.

3. Loss of Commission for Poor Performance

If the agent substantially breaches their obligations, they may lose their commission entitlement (§ 3 para. 3 MaklerG). This applies in particular to:

• Favouring one party at the expense of the other
• Acting in self-interest (dual agency issue)
• Failing to disclose a conflict of interest

4. Dual Agency

Acting as a dual agent (for buyer and seller simultaneously) is permitted in Austria, but only if both parties consent and the agent discloses their dual role (§ 5 MaklerG). Without this disclosure, the agent risks losing both commissions.

Warranty vs. Damages

Warranty

This primarily concerns the seller/landlord, not the agent. The buyer can assert defects against the seller within 2 years (purchase) or 3 years (movable items). The agent is only liable here if they themselves deceived about defects.

Damages by the Agent

Anyone who suffers loss due to a culpable breach of contract by the agent can claim damages under § 1295 ABGB. Requirements:

1. Unlawful conduct by the agent
2. Causal link to the damage
3. Fault (intent or negligence)
4. Concrete damage

The limitation period for damage claims is generally 3 years from knowledge of the damage and the responsible party.

Practical Liability Minimisation

Careful Documentation

The most important protective measure: record everything in writing.

• Document all viewings and consultation meetings
• Have information from sellers confirmed in writing
• Archive all email correspondence completely
• Use handover and viewing protocols with signatures

Checklist During Property Intake

Have the seller/owner confirm in writing:

• Floor area and usable area (with measurement basis)
• Known defects and damage
• Ongoing proceedings (court, authority)
• Land register situation (encumbrances, rights, mortgages)
• Energy certificate status
• Contamination/brownfield issues (especially important for land)
• Tenancy situation and rental terms

Professional Indemnity Insurance

Mandatory for licensed agents under GewO. The minimum coverage is prescribed by law, but many experienced agents choose higher coverage amounts, particularly for commercial and luxury properties.

Minimum coverage under GewO: €100,000 per claim and €1,500,000 annual maximum (as of 2026 — please verify current figures).

Professional Purchase Contract Drafting

While the agent does not draft the purchase contract themselves (this falls to a notary or lawyer), they should:

• Ensure the client engages a legal advisor
• Not pass on draft purchase contracts without qualified legal advice
• Inform clients about typical contractual clauses (warranty exclusions, liability limitations)

Typical Pitfalls

Verbal representations: Verbal assurances about property characteristics (“the basement is dry”, “the roof was just newly covered”) can give rise to liability — even if made informally in conversation.

Photos and drone footage: If a photo shows a significantly better situation than reality (deliberate filtering/retouching), this can be treated as misrepresentation.

Energy certificate errors: Incorrect HWB values in listings or presenting an outdated certificate.

Building law information: Incorrect statements about zoning (e.g., “you can definitely build here”) can be costly if the buyer relies on them.

Conclusion

Broker liability is complex, but manageable through professional working methods and systematic documentation. Those who carefully gather information, document and pass it on in writing, and always refer clients to experts for legal questions, have the most important risks under control. Good professional indemnity insurance is the final safety net.