The principles of private autonomy and freedom of contract
Tarbija24 turned to the lawyers of the law firm Lepmets & Nõges with a reader's question whether the landlord has the right to ask for a so-called broker's fee from the rent, even though he is looking for a new tenant without using the services of a broker.
«I found a nice apartment for myself and my girlfriend in Tallinn and we wanted to take it, when the landlord said that he would ask me for an additional brokerage fee of several hundred euros. I told him we wouldn't pay. He said that I should look for a new apartment. Does he have the right to ask me for this money? I was specifically looking for an apartment directly from the owner," the man described.
In response, we explained that the principle of private autonomy applies in Estonian civil law, one of the outputs of which is the principle of freedom of contract. The latter guarantees the parties to the contract the opportunity to agree on the terms of the contract themselves. This must also be borne in mind in the present case. The lessor has the right to ask for a fee for activities prior to the conclusion of the contract. Be it the time spent, the kilometers driven or the amount of money spent on advertising. In a situation where the landlord's pre-contractual demands are not to the tenant's liking, the tenant has the right to rent the necessary premises on more suitable terms from another landlord.
In this case, the use of the term "broker's fee" probably caused confusion. The Debt Law Act defines a broker as a person who mediates the conclusion of a contract with a third party for another person. Since no broker has been used, it is also not appropriate to call the amounts demanded by the landlord as a broker's fee. Nevertheless, the wrong use of the term does not make the whole activity illegal. Both the lessee and the lessor have the right to name the conditions upon fulfillment of which they agree to enter into a lease agreement.
The answer was published in the "Reader asks" section of Tarbija24 on August 28, 2013.
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