In a recent decision (10 Ob 34/17y), the Supreme Court states that vehicles parked illegally in a private parking space may not be towed away without authorization. The owner of the vehicle must be given the opportunity to remove the vehicle themselves.

In the underlying case, a car was parked in a rented private parking space. As a result, the parking space could not be used for several days. The request attached to the windshield to remove the vehicle went unheeded. Inquiries in the neighborhood as to who owned the vehicle also yielded no results. The police stated that they were not responsible for a private parking space. In the end, the tenant of the parking lot decided to have the vehicle towed away for a fee. Too hasty, as the Supreme Court has now ruled.

The tenant assigned her rights to the towing company, which then attempted to recover the costs of towing and storing the vehicle. By inspecting the registration records, the name and address of the registration holder could be obtained. The corresponding request for payment was returned to the towing company with the note “moved”. The subsequent query of the Central Register of Residents did not reveal the current place of residence of the licensee. In the end, the towing company sued the licensee, who was represented in the proceedings by a trustee, for payment of the costs incurred. However, the claim was not justified.

By towing the car, the tenant of the parking lot was exercising self-help, although she was not (yet) entitled to do so. In order to protect and enforce rights (here: tenancy law), official assistance must always be called upon. Self-help is only justified if official assistance would come too late. However, this does not mean a merely long duration of proceedings. Even then, the least restrictive means of legal enforcement must be chosen for self-help. Before the vehicle is towed away, reasonable inquiries must first be made as to the identity of the license holder.

In this specific case, the tenant should have obtained information from the vehicle registration register before ordering the vehicle to be towed away. This would have been reasonable for her, according to the Supreme Court. The owner of the registration should have been given the opportunity to remove the car from the parking lot herself by means of appropriate notification. The message on the windshield and the inquiries in the neighborhood were not sufficient. The fact that in the present case a possible letter from the owner of the vehicle registration prior to towing would not have led to any removal due to the delay is irrelevant.

In general, it should be noted that a tenant is also entitled to further legal remedies in such a case (e.g. action for interference with possession and/or injunction). As stated by the Supreme Court, premature towing leads to costs for the tenant that are not eligible for compensation.