Anyone who sells their property without an estate agent saves the commission – but bears every legal obligation and every liability risk alone. The duty to provide information, liability for material defects and the energy performance certificate are not mere formalities, but binding requirements whose violation can catch up with you years after the sale. We show you which obligations you face as a private seller and how to avoid costly mistakes from the outset.
Without an Estate Agent, You Bear Sole Responsibility
There is no legal requirement to appoint an estate agent. The only mandatory requirement is notarisation of the purchase agreement (§ 311b BGB). Everything else – valuation, exposé, marketing, viewings and providing the buyer with complete information – you may handle yourself.
Important to know: The central legal obligations are always borne by the owner, not the estate agent. An estate agent is not a liability shield. They can relieve you of organisational tasks and point out typical pitfalls – but liability for material defects and the duty to provide information remain yours. In a private sale, only this professional support is omitted, while the risk remains unchanged with you. It is therefore all the more important to know your own obligations precisely.
Duty to Provide Information: You Must Disclose These Defects
There is no general obligation to disclose every minor circumstance on your own initiative. In principle, the buyer must form their own impression and inspect clearly recognisable defects during the viewing. If the buyer already knows of a defect or if it is obvious, they cannot subsequently derive any rights from it (§ 442 BGB).
However, there are two clear limits at which the duty to provide information applies:
- You must answer specific questions truthfully and completely. For example, if the prospective buyer asks about damp in the basement, you may not conceal or play down a known water damage issue.
- Hidden, material defects must also be disclosed unsolicited if they are demonstrably significant to the purchase decision and the buyer cannot recognise them during a normal viewing.
Such points subject to disclosure typically include:
- hidden damp, mould or previous water damage
- dry rot, woodworm or other Pest infestation
- structural problems or cracks in the masonry
- contaminated sites in the soil, oil tanks or installed asbestos
- building-law problems such as unauthorized construction without a permit
- for condominiums: known, approved special assessments or major repairs due soon
If you deliberately conceal such a defect, you are quickly acting fraudulently – with far-reaching consequences, as the next section shows.
Liability for Defects: Why “bought as seen” does not cover everything
A material defect exists if the property does not have the agreed condition or is not suitable for ordinary use (§ 434 BGB). This may include dampness, a leaking roof or faulty electrical installations.
When selling existing properties between private individuals, it is customary and permissible to exclude statutory warranty in the purchase agreement. Wording such as “bought as inspected, excluding liability for material defects” is standard. Many sellers therefore believe they are free of any further responsibility after handover. This is a dangerous misconception.
Because this exclusion has a crucial limit: The seller cannot rely on an agreed exclusion of liability insofar as they fraudulently concealed the defect or assumed a guarantee for the condition (§ 444 BGB). Anyone who deliberately conceals a known, serious defect is therefore fully liable despite “bought as seen.”
The limitation period is particularly unpleasant: Normally, claims for defects in a building become time-barred five years after handover (§ 438 BGB). If the seller fraudulently concealed a defect, this short period does not apply: The regular limitation period then applies, which only begins when the buyer becomes aware of the defect and can catch up with you many years after the sale.
Energy Performance Certificate: present, state and hand over
The energy performance certificate is mandatory when selling – regardless of whether a broker is involved. The Building Energy Act (GEG) requires you to take several steps:
- In the advertisement: If you place an advertisement and the energy performance certificate is already available, certain key figures must already appear in the advertisement (§ 87 GEG): the type of certificate (demand-based or consumption-based certificate), the Final energy value, the primary energy source for heating, the year of construction, and the energy efficiency class.
- During the viewing: You must present the energy performance certificate or a copy no later than during the viewing without being asked – for example, by clearly displaying it (§ 80 GEG).
- After the purchase: Immediately after concluding the contract, you must hand the buyer the original certificate or a copy.
Anyone who fails to comply with these obligations commits an administrative offense. Fines of up to 10,000 euros may be imposed for missing mandatory information or failure to present the certificate (§ 108 GEG). A valid energy performance certificate can be used for ten years – so have it issued in good time before the first advertisement.
Further obligations at a glance
In addition to the three major topics, there are a number of other obligations that you, as a private seller, should not overlook:
- Accurate information: The living area, year of construction, and condition must be described correctly. Incorrect floor-area information in the exposé may be deemed an assured characteristic and give rise to claims.
- Documents for condominiums: You should disclose the declaration of division, the minutes of the most recent owners’ meetings, the budget plan, and the amount of the maintenance reserve.
- Disclose land-register encumbrances: You must inform the buyer about registered rights such as land charges, rights of way or residential rights, as well as heritage protection.
- Proof of identity at the notary: Under the Money Laundering Act, both parties identify themselves at the notarial appointment using a valid identity document.
- Handover as agreed: On the agreed date, you hand over the property in the promised condition, usually with a handover report including meter readings.
Advantages and disadvantages: Handling the obligations yourself without an agent
Whether you shoulder these obligations alone or obtain support is a matter of weighing the options:
- Advantage – cost savings: You save the pro rata agent’s commission, which can amount to several tens of thousands of euros for higher purchase prices.
- Advantage – full control: You know your property best and decide yourself which information reaches prospective buyers, when, and how.
- Advantage – direct communication: You answer questions about the condition and defects directly and first-hand.
- Disadvantage – no professional corrective: Without an agent, you lack the routine involved in disclosure, Contract preparation and documents typically catch mistakes.
- Disadvantage – full liability risk: Every gap in the exposé or in the disclosure comes back to you – a broker does not relieve you of statutory liability anyway.
- Disadvantage – effort required for documents: You must obtain the energy performance certificate, land register extract and apartment documents completely and in good time yourself.
What liability risks arise in the event of a breach of duty?
If you breach your duties, the buyer has the statutory rights regarding defects (§ 437 BGB): They can demand subsequent performance, reduce the purchase price, withdraw from the contract or claim damages.
In the event of fraudulent deception, another particularly severe instrument is added: The buyer can contest the purchase contract (§ 123 BGB). The contestation is possible within one year of discovering the deception, but no later than ten years after the conclusion of the contract (§ 124 BGB). If successful, the transaction is reversed – a scenario that can lead to substantial repayments years after the sale supposedly concluded. Possible fines relating to the energy performance certificate may also arise. Honesty and completeness are therefore not merely a matter of decency, but your best protection.
FAQ on the obligations when selling without a broker
As a private seller, do I really have to disclose every defect?
No, not every minor detail. The buyer must inspect defects that are clearly apparent themselves. However, you must disclose hidden, material defects without being asked and answer every specific question truthfully and completely. Concealing known, serious defects is quickly considered fraudulent.
Does an exclusion of liability for defects protect me from all liability?
No. Excluding liability for material defects is customary and effective in private sales, but it is not unlimited. You cannot rely on it if you fraudulently concealed a defect or assumed a guarantee (§ 444 BGB). You remain liable for defects deliberately concealed despite “sold as seen.”
Is an energy performance certificate also mandatory when selling without a broker?
Yes. The obligation applies to the seller, regardless of whether a broker is involved. You must state the energy performance figures in the advertisement, present the certificate no later than during the viewing and after the Hand over the purchase. Violations may result in fines of up to 10,000 euros.
How long am I liable for defects after the sale?
Claims for defects in a property generally become time-barred five years after handover (§ 438 BGB). However, if you fraudulently concealed a defect, this short limitation period does not apply – you may then be held liable for significantly longer.
Am I less liable if I use an estate agent?
No. Statutory seller liability for defects and the duty to disclose remain your responsibility as the owner in all cases. An estate agent can help you with documents and wording and help avoid practical mistakes – but they do not assume your legal responsibility.
Conclusion: Clear disclosure protects you
Selling without an estate agent is permitted and saves money – but it requires you to take your obligations seriously. The three most important levers are honest, complete disclosure of known defects, a properly prepared energy performance certificate, and knowing that an exclusion of warranty is worthless in cases of fraudulent concealment. Anyone who sells transparently, keeps all documents ready and, when in doubt, discloses one defect too many rather than too few minimizes their liability risk and brings the sale safely to completion.