In private sales, several weeks often lie between the verbal commitment and the notary appointment – time during which a buyer may withdraw or another interested party may make a better offer. A reservation agreement is intended to secure precisely this phase, but legally it is more delicate than many owners think. We explain when a reservation in a private-to-private sale is permissible, how high the reservation fee may be, and which alternatives are often the safer route.
What Is a Reservation Agreement?
A reservation agreement – also called a reservation contract – is a written arrangement under which the seller undertakes to take the property off the market for a specified period and not sell it to another interested party. In return, the prospective buyer often pays a reservation fee. The agreement bridges the phase between the commitment to purchase and the notarized purchase agreement – in other words, the period during which the buyer finalizes financing and both parties prepare for the notary appointment.
When selling through an estate agent, the agent manages the reservation and formulates the conditions. In a private sale, you as the owner must decide yourself whether and how to reserve the property – and therefore also bear the legal risk of an incorrectly drafted agreement.
Why Private Sellers Consider a Reservation
The typical trigger: After several viewings, an interested party has made a decision but still needs two to six weeks for the bank’s financing approval and the notary appointment. During this interim period, both parties want security. The buyer does not want to lose the property to a higher bid from a third party. The seller does not want the interested party to withdraw at the last moment and force them to start all over again.
A reservation agreement is intended to formalize this mutual trust. It signals seriousness and gives both parties a limited time window. But this is also where the difficulty lies: A genuine, legally binding obligation to purchase cannot be created with a simple reservation – the law provides another route for this purpose.
The Legal Situation in 2026 at a Glance
Strict formal requirements apply to purchase agreements for land and real estate. Under § 311b (1) BGB, a A contract by which someone undertakes to transfer or acquire ownership of a property must be notarized. This formal requirement protects both parties from hasty decisions in one of the biggest transactions of their lives.
What matters for the reservation: The formal requirement applies not only to the actual purchase contract, but also to any agreement that exerts indirect pressure to buy or sell. If the commitment becomes so significant that it comes close to an obligation to acquire or sell, the reservation must also be notarized. If the required form is absent, the agreement is void under § 125 BGB – and any fee paid can be reclaimed.
The Federal Court of Justice judgment of April 20, 2023 (Case No. I ZR 113/22) is also well known: According to it, real estate agents may not charge a reservation fee in their General Terms and Conditions, because this unreasonably disadvantages the customer (§ 307 BGB) – the customer receives no significant benefit, while the agent provides no genuine consideration. Important for you: This judgment concerns exclusively agents and their General Terms and Conditions, not the relationship between a private seller and buyer. It therefore does not apply directly to private sales. Nevertheless, the underlying principle – no significant disadvantage without genuine consideration – should still guide you.
How high may the reservation fee be?
Between private individuals, reservation agreements are significantly less problematic than with agents, as long as the fee remains low. A reservation fee roughly corresponding to the expected additional costs of remarketing is generally considered unobjectionable. As a guideline, a value of around 0.3 percent of the purchase price has become established – this corresponds to approximately 10 percent of a customary net agent commission.
The courts draw the line conservatively: The Dortmund Local Court considers notarization mandatory as soon as the reservation fee exceeds 0.3 percent of the purchase price. In some cases, fees of up to around 1 percent are still tolerated – but the higher the amount, the greater the risk that a court will view it as indirect pressure to buy and declare the agreement void.
A calculation example: For a purchase price of 400,000 euros, 0.3 percent amounts to 1,200 euros. Such a fee is generally unobjectionable. If, on the other hand, you demanded 15,000 euros, the buyer would suffer a significant disadvantage if he ultimately decided not to buy. The agreement would then be subject to notarization and invalid without a notary – and the buyer could demand the money back.
When is a notary mandatory?
The more binding a reservation is structured, the more likely it is to be subject to the formal requirement. As soon as the agreement establishes a genuine obligation to buy or sell, or creates economic pressure through a high fee, notarization is required.
This reveals the fundamental contradiction of a reservation: A notarized reservation agreement is almost as time-consuming and expensive as the purchase agreement itself. Anyone taking this step can generally have the purchase agreement notarized right away. A truly “watertight” reservation is therefore rarely worthwhile – and a reservation not requiring a particular form does not reliably bind anyone.
FAQ about reservation agreements for private sales
Is a private reservation agreement binding at all?
Only to a limited extent. Without notarization, no enforceable obligation arises to actually conclude the purchase agreement. Both parties can still withdraw before the notary appointment. A low, permissible reservation fee merely creates an economic incentive to proceed with the purchase – not a genuine obligation to buy.
How high may the reservation fee be?
As a rule of thumb, it should be no more than approximately 0.3 percent of the purchase price. If the fee remains within this range and corresponds to the costs of possible remarketing, it is generally unobjectionable. Higher amounts risk being classified as indirect coercion to purchase and thus becoming invalid.
Will I get the reservation fee back?
That depends on the agreement. In the case of a permissible reservation, the fee is usually credited toward the purchase price if the purchase goes ahead. Clearly and in writing, regulate the offsetting and repayment if the purchase does not take place. If the agreement is excessive or void for formal reasons, the buyer can demand repayment of the money anyway.
Does the 2023 BGH ruling also apply to private sellers?
No, not directly. The ruling of April 20, 2023, concerns reservation fees exclusively in the standard terms and conditions of real estate agents. It does not apply directly between private sellers and buyers. The underlying legal principle – no significant burden without reasonable consideration – should nevertheless guide you in structuring it.
Does a reservation require notarization?
Only if it creates an indirect obligation to buy or sell, for example through a high fee or a genuine binding obligation. In this case, notarization is required under § 311b BGB; otherwise, the agreement is void. A low, non-binding reservation, on the other hand, can be made without any formal requirements.
Advantages and disadvantages for private sellers
Whether a reservation agreement is worthwhile depends on your situation. You should weigh these points:
- Advantage – signal of seriousness: A reservation shows that the prospective buyer is serious and filters out undecided buyers.
- Advantage – time frame: Both parties receive a defined period to arrange financing and the notary appointment.
- Disadvantage – false sense of security: Without notarization, the reservation does not reliably create a binding obligation; a determined buyer can still withdraw.
- Disadvantage – legal risk: If the fee is too high, the agreement is void and the payment can be reclaimed – in the worst case involving disputes and legal fees.
- Disadvantage – no protection against financing rejection: If the buyer’s bank rejects the application, even the best reservation will not help.
- Disadvantage – effort without real added value: A robust, notarized reservation costs almost as much as the purchase agreement itself.
Safe alternatives to a reservation agreement
Instead of relying on a legally precarious reservation, secure the sensitive phase between acceptance and notarization with these measures:
- Schedule the notary appointment promptly: The shorter the waiting period, the less need there is for a reservation. Instruct the notary to prepare the draft agreement at an early stage.
- Request financing confirmation: Before accepting the offer, have the buyer provide a binding financing commitment from the bank. This offers more reliable protection than any fee.
- Binding declaration of intent without payment: A written, informal declaration of intent (Letter of Intent) records the seriousness without the legal pitfalls of a monetary payment.
- Communicate clear deadlines: Transparently agree on when the notary appointment should be scheduled, while keeping in contact with other prospective buyers in parallel.
Conclusion: Limited usefulness, often a false sense of security
A reservation agreement in a private sale is rarely the strong security instrument that many consider it to be. Without notarization, it is hardly binding; with notarization, it is almost as involved as the purchase agreement itself. If you nevertheless wish to reserve, keep the fee low – as a guideline, around 0.3 percent of the purchase price –, limit the term of the agreement and regulate offsetting and repayment in writing. In most cases, however, you are better off going to the notary promptly and having the buyer’s creditworthiness verified by means of a financing confirmation. This allows you to keep the sale securely under control without taking on legal risk.