The Robber Knight Method - Excessive monetary demands following disturbances of possession

The possessory action (Besitzstörungsklage) is an appropriate instrument to purposefully, economically, and above all, swiftly prevent impending disturbances of possession. This applies especially to parking lot owners who often have no other means to defend themselves against trespassers unlawfully occupying their parking spaces.

However, we are increasingly receiving complaints about dubious monetary demands related to alleged disturbances of possession due to parked vehicles. After mere maneuvers touching foreign ground or unintentionally entering poorly marked private parking lots, affected individuals receive letters from attorneys issuing warnings on behalf of their clients, typically demanding compensation in the range of €350-400, with the threat of costly possessory actions if not complied with. The possessory action serves as a means of pressure to secure payment of the demanded sum. It appears that this approach, already known in jurisprudence as the 'robber knight method,' offers some parking lot owners a lucrative side income. This sometimes goes as far as renting out parking spaces in poorly visible locations equipped with cameras, almost eagerly waiting to be 'disturbed' in possession.

LEGAL BACKGROUND

In principle, there is no legal entitlement to payment of the demanded sum. Austrian law does not recognize an abstract claim for compensation for disturbing another's possession.

However, a disturbance of possession entitles the disturbed possessor to file a possessory action to obtain a restraining order and to claim reimbursement of the necessary expenses: If a disturbance is proven, the disturber will have to bear the court and attorney costs incurred. Faced with this risk, many prefer to voluntarily pay the demanded amount rather than provoke a court proceeding.

To successfully defend oneself, it is necessary to adequately address

• the risk of a possessory action
• the claim for reimbursement of costs

RECOMMENDATIONS FOR ACTION

In principle, you have two options for dealing with the opposing party's demand:

1. If you wish to prevent the risk of being sued for restraint or reimbursement at all costs, it is possible, of course, to reach an out-of-court settlement by agreeing to pay an agreed sum of money. If you decide to do so, we recommend expressly negotiating the amount of the settlement with the opposing party first. The opposing party also wants to avoid litigation, just like you, and knows better the shaky ground on which the claim stands. In any case, we recommend making payment only with the explicit reservation of legal review to avoid ruling out any desired legal enforcement afterwards.

2. The risk of a possessory action can be countered by the disturber issuing a legally effective declaration of cease and desist. It is important in this regard to

• set an appropriate penalty,
• and send the declaration by registered mail (sending by email is not sufficient for the effectiveness of the declaration).

The remaining risk of a claim for reimbursement can be countered by actually reimbursing the necessary attorney costs in an appropriate amount. However, these costs cannot be arbitrarily determined: the Attorney Tariff Act (Rechtsanwaltstarifgesetz) is the benchmark for the adequacy of the amount of reimbursement. In recent jurisprudence, a sum of ≈€70 has been awarded repeatedly. This calculation includes driver identification, as well as a lawyer's demand letter. Claims for reimbursement exceeding ≈€70 will, in most cases, not stand in court.

Once the costs have been reimbursed and the legitimization of the disturbed possessor's action by means of a legally effective declaration of cease and desist has been removed, there is no legal basis to continue proceedings against the affected parties.

Especially when issuing a legally effective declaration of cease and desist, errors are regularly made that lead to the ineffectiveness of the declaration. Therefore, we recommend consulting a lawyer to review the above steps with regard to your specific situation.

For further questions, we are at your disposal.