The purchase contract is signed, and a few weeks later it turns out: the basement is damp, the living space stated in the listing doesn’t match reality, or the promised building permit doesn’t actually exist. In moments like these, buyers immediately ask themselves whether — and to what extent — the broker who arranged the sale must answer for such statements. The answer depends on many details: the type of false statement, what the broker actually knew, and what was really agreed in the purchase contract and the brokerage agreement.

Before considering legal steps, it’s worth taking a sober look at the available documents: listing, brokerage agreement, email correspondence, energy certificate, and purchase contract should be gathered and put in chronological order. Simon Immobilien helps interested parties make sense of the facts and formulate the right questions for sellers, brokers, or legal counsel — this does not replace legal advice in the narrower sense; if in doubt, a lawyer should be consulted.

Key points at a glance

1. In Austria, brokers are liable for false or misleading statements if they made them knowingly or through gross negligence.
2. The central legal basis is formed by the Brokers Act (Maklergesetz), the General Civil Code (ABGB), and the general rules on culpa in contrahendo — fault during contract negotiations.
3. A broker does not have to carry out a technical building inspection, but must pass on sellers’ statements with due care and check their plausibility.
4. Statutory warranty and damages are different legal instruments with different deadlines and different parties they can be claimed against.
5. A warranty exclusion in the purchase contract protects the seller, but does not automatically protect the broker in cases of the broker’s own misconduct.
6. Documentation is decisive: those who collect promises and paperwork are in a much stronger position in a dispute.

What broker liability is about

Broker liability concerns the question of whether and when a real estate broker must answer for damages suffered by a buyer or tenant as a result of incorrect, incomplete, or misleading information. The issue typically becomes relevant when it turns out after the purchase that statements in the listing did not correspond to reality — for example regarding living space, the condition of the building structure, zoning classification, encumbrances in the land register, or existing tenancy agreements.

In Austria, the activity of real estate brokers is regulated by the Trade Regulation Act (Gewerbeordnung) and the Brokers Act (MaklerG). By law, the broker is obliged to inform both contracting parties truthfully and completely, insofar as the relevant circumstances are known to them or ought to be known to them. This obligation is often referred to as dual-agent neutrality, because many brokers act both for the seller and, in practice, in the interest of the buyer side as well. For buyers, this means: the broker is not automatically “their” representative, but still owes them a duty of disclosure.

Broker liability is relevant for private buyers just as much as for investors acquiring apartment buildings or buy-to-let units. Particularly with older existing properties in Vienna or in sought-after state capitals, questions about building substance, zoning, or heritage protection requirements arise more frequently than with new-build projects that come with standardized documentation.

Basic concepts: duty of disclosure, warranty, damages

The broker’s duty of disclosure

Under Section 3 of the Brokers Act, the broker owes diligent activity that safeguards the interests of the parties involved. This includes informing the interested party of all circumstances that are material to their decision and that are known to the broker or ought to be known to the broker if they exercised due care. This is not a guarantee that every seller statement is correct, but rather an obligation to pass on information carefully and, where reasonable, to check it.

Warranty versus damages

Statutory warranty under the ABGB is primarily directed against the seller and concerns defects that the purchased property already had at the time of handover. It does not depend on fault, but is bound to short deadlines — for immovable property, generally three years from handover. Claims for damages against the broker, by contrast, require fault: intent or negligence in providing incorrect information. These claims generally become time-barred three years after the injured party becomes aware of the damage and the person responsible, and at the latest after thirty years.

Culpa in contrahendo

This Latin-derived term describes fault during contract negotiations. It is the legal doctrine that allows even people who are not themselves party to the contract — such as the broker — to be held liable. A broker who knowingly makes false statements or withholds material information can be held liable under this doctrine, even though the purchase contract is formally concluded only between buyer and seller.

A common misunderstanding: many buyers believe that a warranty exclusion agreed in the purchase contract automatically protects the broker as well. That is not correct. Such an exclusion concerns the contractual relationship between buyer and seller. Claims against the broker arising from the broker’s own misconduct generally remain unaffected by it.

What actually matters in the assessment

Whether broker liability actually applies depends on several factors that must be examined on a case-by-case basis:

• The broker’s state of knowledge: did they know about the defect, or should they have recognized it with reasonable care?
• The nature of the statement: is it a verifiable fact such as living space or land register status, or merely the seller’s subjective assessment?
• Passing on information versus making one’s own claim: did the broker clearly pass on a seller’s statement as such, or did they adopt it as their own?
• Documentation: are there written promises, emails, or listing wording that document the situation?
• Causation and amount of damage: is the alleged damage actually attributable to the false statement, and can it be quantified?

In practice, the distinction between “passing on someone else’s information” and “making one’s own claim” is particularly important. A broker who writes in the listing “according to the seller, no known moisture damage” carries a lower liability risk than one who states without qualification “basement dry and renovated.” Buyers should therefore examine listings and verbal statements carefully for such wording and, if in doubt, ask in writing before relying on a statement.

Anyone wanting an overview of comparable properties before buying can find additional orientation on price levels and property condition in the relevant area through Simon Immobilien’s current property listings and the location guides for individual regions.

Process: what to do if you suspect false statements

1. Secure documents: gather the listing, brokerage agreement, purchase contract, email correspondence, and photos of the condition after handover (duration: a few days).
2. Document the defect: for structural defects, bring in a surveyor or building expert to record the condition professionally (duration: one to three weeks).
3. Contact the broker and seller: describe the situation in writing and request a response, ideally with a deadline (duration: two to four weeks for a reply).
4. Obtain legal advice: a lawyer specializing in real estate law examines whether warranty or damages claims exist and against whom they are directed (duration: an initial consultation is usually possible within a few days).
5. Keep deadlines in view: note warranty periods and limitation periods for damages claims so as not to lose any entitlements.
6. Consider an out-of-court settlement: many cases are resolved through settlement talks or mediation before a court gets involved (duration: several weeks to months).
7. Litigation as a last resort: if no agreement is reached, the civil courts — the competent district or regional court — remain an option.

Case example: damp basement after an apartment purchase

A buyer purchases an apartment in a period building. The listing stated: “Basement dry, no known moisture damage.” After moving in, clear signs of moisture appear, and an expert report puts the renovation costs at a mid five-figure sum (an indicative figure for an example of this scale, not an actual damage amount). Two scenarios are conceivable:

In the first scenario, the broker adopted the statement from the seller without checking it and without qualification, even though moisture stains should have been noticeable during an internal viewing. Here, co-liability of the broker for breach of the duty of care may come into consideration, in addition to warranty claims against the seller.

In the second scenario, the broker explicitly marked the statement as coming from the seller (“according to information provided by the owner”) and did not themselves notice any recognizable defects. Here, the seller primarily bears the risk via warranty, and broker liability is considerably harder to establish. In both cases, the statutory transaction costs remain unchanged: real estate transfer tax (Grunderwerbsteuer) of 3.5 percent of the purchase price and a registration fee of 1.1 percent for entry in the land register apply regardless of any later dispute over defects.

Basis of claim	Defendant	Requirement	Typical deadline
Warranty	Seller	Defect existed at handover, no fault required	3 years from handover
Damages	Broker or seller	Fault (intent/negligence)	3 years from awareness, max. 30 years
Challenge for mistake	Seller	Material mistake at conclusion of contract	Depends on the individual case

Common mistakes and how to avoid them

Buyers frequently rely exclusively on verbal assurances without having them confirmed in writing. This backfires in a dispute, because verbal statements are hard to prove. Another common mistake is reading listing statements uncritically as statements of fact, even though they are recognizably based on information from the seller. Missing deadlines is also costly: anyone who only takes action after the warranty period has expired irrevocably loses their claims.

Some buyers also underestimate the value of an independent technical inspection before purchase. A structural survey costs additional time and money, but it uncovers defects before they turn into a dispute. Finally, buyers often neglect to read the brokerage agreement carefully: it sometimes contains clauses limiting liability that can become relevant in a dispute — though not every limitation is effective where gross negligence or intent is involved.

Checklist: before and after buying a property

• Compare all listing statements with the land register extract and the energy certificate.
• Have verbal promises confirmed in writing, for example by email.
• If in doubt about the building structure, arrange an independent inspection.
• Read through the brokerage agreement for liability clauses, and ask if anything is unclear.
• Note warranty periods after handover and mark them in your calendar.
• Document, photograph, and report any defects in writing immediately.
• Obtain legal advice before deadlines expire or before signing any settlement.
• Always communicate with the broker and seller in writing, or summarize conversations afterward.

Frequently asked questions

Is a broker automatically liable for all statements in the listing?

No, there is no automatic liability. What matters is whether the broker knowingly made a false statement, or whether they should have recognized and corrected it with reasonable care. Simply passing on a seller’s statement that is recognizably not the broker’s own is assessed differently from an unqualified claim made by the broker themselves.

Can I pursue claims against both the seller and the broker?

In principle, yes, if the respective requirements are met. Warranty claims are typically directed against the seller, while damages claims based on fault can additionally exist against the broker. Which claims are actually enforceable in a specific case should be examined by a lawyer.

What role does a warranty exclusion in the purchase contract play?

A warranty exclusion primarily concerns the relationship between buyer and seller and can limit or exclude warranty claims. However, it does not automatically protect the broker if the broker’s own misconduct — such as a knowingly false statement — can be proven.

How much time do I have to take action against false statements?

Warranty claims for immovable property generally become time-barred three years after handover. Damages claims generally become time-barred three years after the injured party becomes aware of the damage and the person responsible, and at the latest thirty years after the damaging event. Because these deadlines run differently, early legal clarification is advisable.

What should I do if the broker doesn’t respond to my inquiry?

A written request with a clear description of the facts and a deadline is the sensible first step. If the broker still doesn’t respond, filing a complaint with the relevant chamber of commerce or seeking legal representation can help secure claims before deadlines expire.

How Simon Immobilien supports you

Simon Immobilien accompanies buyers from the initial property selection through to handover, placing value on verifiable, well-documented information about a property’s condition, features, and legal framework. When questions arise about listing wording, expert reports, or draft contracts, an objective assessment can help — though legal review by a lawyer remains essential in a dispute. Anyone with a specific question about a property, or looking for a second opinion, can get in touch easily via Simon Immobilien’s contact page, as well as explore further topics in the property guide.