Trespass: Demand Letters from Lawyers Only

Mar 22, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that businesses commercially assisting their clients in making out-of-court claims for trespassing constitutes an unjustified interference with lawyers’ right to represent clients.

The defendant owns a business license for security services, where customers can report cases of trespassing online, thus hiring the defendant. Signing a contract with the security firm gives the firm co-ownership of the property where the trespass happened, in accordance with its GTCs. The firm then sends a cease-and-desist letter to the trespasser(s) in which they agree to pay a lump sum of EUR 399 to avoid legal action. The action would be brought by an Austrian partner solicitor. The client was to receive 50 per cent of the lump sum as a commission.

The plaintiff (= injured party), who runs a law firm in Vienna, sought an injunction prohibiting the defendant from sending cease-and-desist letters to trespassers on behalf of third parties, and demanded payment of a lump sum.

The injunction was dismissed by the lower courts. As the defendant did not assert assigned claims but independent claims, there was no breach of the Austrian Code of Professional Conduct for Professional Detectives.

In the opinion of the OGH, the defendant advertises protection of the customer’s property. Customers are advised not to take legal action themselves, but to instruct the defendant to do so. Under Section 8(2) of the Austrian Lawyers’ Code (Rechtsanwaltsordnung, RAO, the right of professional representation is reserved for lawyers. In order to interfere with this right, it is sufficient to carry out on a professional basis such activities reserved for lawyers.

The defendant’s objection that they were asserting own claims was irrelevant, according to the OGH. Since there was no exercise of rights in the company’s own name, there was no existence of legal possession. Performing surveillance on a property can at best have the effect of possession, but not ownership of property or rights, as those doing the surveilling have no intention to exercise those rights in their own name.

The OGH issued an injunction against the defendant, and the injured party was ordered to sue within a reasonable time.

OGH 4 Ob 5/24z (25 January 2024)