The Federal Court of Justice thus clarifies that the prohibition of discrimination applies not only to landlords, but also explicitly to real estate agents. This is particularly important because real estate agents often decide who is invited to view a property.
The case: rejection with a Pakistani name, acceptance with a German name
The case began when a woman from Hesse was looking for an apartment. In November 2022, she applied several times via an online form for apartments advertised by a real estate agency. She gave her Pakistani first and last names in each application. However, according to the ruling, she received rejections to all her applications – among other reasons, on the grounds that there were no more viewing appointments available at that time.
To verify whether this was indeed the case, the woman made further inquiries with identical information regarding income, occupation, and household size. She only changed her first and last names, using German-sounding names such as "Schneider," "Schmidt," and "Spieß." In these cases, she was then offered viewing appointments.
However, inquiries with her foreign-sounding name remained unanswered or were rejected. It was therefore obvious to the plaintiff that it was not missed appointments but her name—and the associated attribution of her origin —that was decisive for the rejections. The woman took legal action against this—initially without success, however.
Case went through several instances
In the first instance, the Groß-Gerau Local Court dismissed the action. However, on appeal, the Darmstadt Regional Court came to a different conclusion.
The judges saw the different treatment —a rejection for a foreign-sounding name and an invitation to view the property for a German name and otherwise identical details—as strong evidence of discrimination. The Darmstadt Regional Court therefore awarded the plaintiff compensation of €3,000 and ordered the real estate agent to pay part of the legal fees incurred.
The broker appealed against this ruling. The case then ended up before the Federal Court of Justice (BGH), Germany's highest civil court.
Ruling: Real estate agents are bound by the Equal Treatment Act
The Federal Court of Justice then had to deal with an important question: Does the General Equal Treatment Act (AGG) also apply to real estate agents or only to landlords?
Ultimately, the rental agreement is concluded between the landlord and the tenant. Real estate agents often act "only" as intermediaries: however, they frequently decide on behalf of the landlord who will be invited to view the apartment.
Explanation: The General Equal Treatment Act (AGG) is intended to protect people from discrimination. It prohibits discrimination on the basis of, among other things, ethnic origin, religion, gender, age, disability, or sexual identity or orientation.
The AGG applies not only to working life, but also to everyday life in relation to publicly accessible services. This explicitly includes access to housing. The aim of the law is to prevent discrimination and provide those affected with effective legal remedies.
In this specific case, the Federal Court of Justice clarified that if a real estate agent publicly advertises apartments—for example, via an online portal—and decides who is invited to view them, their actions fall under the AGG.
The court emphasized that real estate agents play a crucial role. Without their invitation, many apartment seekers would not even get to view the property—and would therefore have no real chance of securing it. Anyone who discriminates against apartment seekers in this selection process on the basis of their ethnic origin is in violation of the prohibition of discrimination.
If real estate agents were excluded from the scope of the AGG, this would create a significant gap in protection. Legal protection against discrimination would be rendered ineffective. Therefore, according to the court, real estate agents must also be liable for discriminatory behavior.
Proving discrimination: circumstantial evidence is sufficient, "testing" is permitted
An important point in the ruling concerns the evidence. The Federal Court of Justice clarifies that affected parties may submit test requests in order to uncover possible discrimination. In this specific case, it was precisely the comparison between requests with foreign-sounding names and identical requests with German-sounding names that provided strong evidence of discrimination.
According to the rules of the General Equal Treatment Act (AGG), it is sufficient for those affected to present evidence that indicates discrimination. The other party must then prove that there was an objective (i.e., non-discriminatory) reason for the different treatment.
During the proceedings, the real estate agent argued that no viewing appointments had been available. However, this explanation failed to convince either the Darmstadt Regional Court or the Federal Court of Justice.
The court also found no wrongdoing on the part of the plaintiff. There was no evidence that she had only made the test inquiries in order to later claim compensation. The decisive factor was rather that she was seriously looking for an apartment and that the inquiries were merely intended to verify the conspicuous rejections.
Conclusion: What does the ruling mean for those affected?
In the end, the Federal Court of Justice upheld the decision of the Darmstadt Regional Court: the broker must pay the plaintiff €3,000 in compensation and cover part of the legal fees. Presiding Judge Thomas Koch spoke of a "clear case of discrimination" when announcing the verdict.
This ruling is of great significance for people looking for housing. It makes it clear that discrimination on the basis of a foreign-sounding name can have concrete legal consequences.
It is particularly important to note that responsibility does not end with the landlord. Real estate agents can also be held liable if they preselect applications or arrange viewings based on origin.
Anyone who feels that they are being systematically disadvantaged in their search for housing because of their name or origincan document this using appropriate means—such as comparable test inquiries—and take legal action against it.
At the same time, the ruling sends a clear signal to landlords and real estate agents: selection procedures must be transparent, objective, and non-discriminatory. Criteria such as income, household size, or creditworthiness are permissible. However, decisions based on name, origin, or ethnic characteristics are not permissible.
