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Trespassing by vehicles: Fundamental considerations and examples

Sec. 339 Austrian Civil Code (ABGB) protects ownership as such against unauthorised trespassing within the meaning of general legal certainty. Both owners of material assets (such as the owner of a parking space) and holders of rights (such as the lessee of a parking space) are protected. The person whose possession is disturbed is entitled to have the intervention, i.e. the direct or indirect impairment of his or her title, judicially prohibited by way of an action of trespass. To assert the case judicially, however, it is a prerequisite for the trespasser to deliberately encroach upon such third party ownership arbitrarily, as a result of which a real or potential drawback for the owner needs to have been brought about.

In the case of trespassing with a motor vehicle, it is to be established who the action of trespass is to be filed against. In line with more recent case law, the holder (owner) of the vehicle may not sue another party merely because he or she let somebody else use his or her motor vehicle and the latter consequently interferes with the possession of it. What is pertinent is rather the question of from whom it can be expected to remedy the interference with ownership. Anyone who indirectly interferes with ownership (e.g. the owner who allows a third party motor vehicle to be towed away from his or her parking space) is likewise deemed answerable as the proper party.

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