OGH: Estate Agent’s Breach of Care and Information Duties

May 21, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) recently considered whether legal proceedings regarding an alleged violation of the duty of care and the obligation to provide information by an estate agent, relating to the sale of a property, fall within the scope of coverage provided by a legal expenses insurance policy.

In the case at hand, a legal expenses insurance policy was in force between the claimant, as policyholder, and the defendant, as insurer. The policy was governed by the General Terms and Conditions for Legal Expenses Insurance (Allgemeine Bedingungen für die Rechtsschutz-Versicherung, hereinafter ARB 2018).

Estate agent misrepresented the property as semi-detached

The claimant owned a detached house and engaged an estate agent to facilitate its sale. The estate agent marketed the property as a semi-detached house, although it was, in fact, detached and complied only with the sound insulation requirements applicable to detached houses. Following this, the purchasers initiated legal proceedings against the claimant, alleging that the property had been misrepresented as a semi-detached house in the advertisement.

The claimant sought indemnity for the pursuit of her claims against the estate agent regarding his breach of duty in connection with the brokerage of the sale contract. The defendant relies on the general exclusion of risk under Article 7.1.2.2 of the Austrian ARB 2018.

Both the court of first instance and the court of appeal dismissed the claim. The OGH upheld these decisions and clarified the following:

The contract covers the claim by default, but risk exclusion applies

According to Section 23 of the ARB 2018, general contractual legal protection encompasses claims arising from contracts governed by the law of obligations that pertain to movable property. The brokerage contract primarily concerned the facilitation of a transaction rather than the property itself. The estate agent’s responsibilities—including preparing brochures and marketing the property for sale—are classified as services relating to ‘movable property’.

Article 7.1.2.2 of the ARB 2018 excludes from insurance any legal interests arising from land ownership transfer, but this applies only if the specific, excluded risk occurs.

The legal action specifically intended by the claimant regarding the alleged breach of duties of care and disclosure in relation to the property for sale by the estate agent is causally linked to the sale of the property, meaning that the exclusion of risk applies.

OGH 7 Ob 171/25k 25 March 2026