Spanish Supreme Court’s Ruling 1451/2019  has confirmed that the exclusivity clause in a mediation contract with a real estate agent for the sale of a property is fully binding and cannot be considered null, as long as it is clearly and comprehensibly drafted, using simple terms that establish a fair balance between the obligations of both parties.

In this case, the real estate agent sought payment of their commission under a mediation contract for the sale of a property, which included an exclusivity agreement. While this contract was still in effect, the seller notified the real estate agent that they had sold the property on their own and refused to pay the agent’s commission, despite having directly and conclusively benefited from the agent’s efforts to find the buyer (such as through signage at the property, email communication, and phone calls).

The defendant seller argued that, as a consumer dealing with a professional real estate agent, the exclusivity clause should be considered null and void as it was abusive and imposed a limitation on their freedom to contract. The trial Court agreed with the seller, and declared the exclusivity clause null and void for those reasons. However, the Provincial Court ruled that such a clause is standard in this type of contract and does not create a significant imbalance between the rights and obligations of the parties. The court noted that the clause does not prevent the seller from selling the property on their own, but merely provides for compensation in favor of the agent “if the sale occurs during the binding period in which the agent is undertaking substantial efforts and expenses.”

When the case reached the Supreme Court, it upheld the Provincial Court’s ruling, confirming the validity of the exclusivity clause. The Court found that the clause was clearly and comprehensibly drafted, and that its terms were simple and established a fair balance between the parties’ obligations, stating that “the mediator undertook to perform significant work to facilitate the sale of the property, while the seller agreed to honor the exclusivity agreement for six months, even refraining from selling on their own, with financial compensation for any breach by the seller.” In this specific case, the compensation was equivalent to the agreed commission, which was 4% of the sale price, and the Supreme Court ruled that this compensation could not be considered disproportionate, “especially given that the seller benefited from the real estate agent’s efforts.”