A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Friday, May 07, 2010

To tow or not to tow…that is the question.

How often do we hear the threat, “If you park there, we’ll tow you” repeated in certain private communities? The question remains, when can and should a board tow cars?

In terms of ability to tow, there is a significant difference between a towing provision contained in an association rule and one contained in the Declaration. When a court is asked to decide the validity of a towing provision enacted solely by Board rule, much greater scrutiny is applied since “so few” have decided the fate of “so many”. Indeed, the legal standard to be applied in these cases is one of “reasonableness”.

By contrast, when a towing provision is made part of an association’s Declaration, courts treat the reasonableness issue as having been resolved since the membership has weighed in and voted to make towing an option to enforce the parking restrictions. Thus, the safest route for a board to take when implementing a towing policy is to do so via amendment to the Declaration. This is not to say that towing provisions contained within Rules and Regulations are not enforceable; they are simply subject to greater scrutiny.

Once you get past the issue of can you tow, you have to ask whether you should be towing. Keep in mind that towing requires taking a resident’s or guest’s private property which tends to anger them and increases the likelihood of retaliatory lawsuits. The location from which the vehicle is towed also plays a role in this decision. Towing an abandoned or inoperable vehicle that is leaking oil onto the common area parking lot is a lot different than towing an unauthorized vehicle from an owner’s driveway.

Finally, Chapter 715 of the Florida Statutes governs the involuntary towing of vehicles. At a minimum, a board’s towing policy must include the following procedures:

• All current owners and residents must be notified of any recently passed rule and the association’s intent to tow unauthorized or improperly parked vehicles at the vehicle owner’s expense.
• The Board must designate, by resolution, a representative to coordinate and oversee the towing.
• The Board must utilize the services of a reputable towing business which strictly follows and adheres to the requirements set for in Chapter 715, F.S.
• The Board should contact the local municipality to see if there are any specific towing requirements which may supplement Chapter 715, F.S.
• The Board should arrange for the installation of all appropriate signs in conformity with the statute such as size, shape, height and contents.

I previously wrote about when to call your association attorney; implementing a towing program is one of those times given what is at stake and the fact that tempers are always escalated when towing is employed.

15 comments:

Anonymous said...

Donna DiMaggio Berger! I wish you were in Utah! You are good and understand the HOA Nuthouse!
To tow or not to tow...that is the question...I wonder if Shakespeare dealt with these issues...I know, my hero, Don Quixote did:"You park here and I will knock your windmill down".

On the serious side; we have been in this condo for nearly eight years. Parked one vehicle in the garage and two outside. Never had any notice nor any problem. A 7 month old VP has cited us. Assessed a $50.00 fine and had one of our vehicles towed. The CC&R's are mute on fines and towing. Rules state: 1. Verbal contact, 2. Written contact and, 3. Tow?
No verbal contact. A note on the windshield: does that constitute written notice?
Well; off to Small Claims Court we go!
Are we grandfathered? The doctrine of waiver? Statute of Limitations based on an instrument in writing?
I can also see some problems with our FHA, VA standing; this 26 year old VP has a gun on his belt when he calls on residents!?
Our quiet enjoyment, as well as our neighbors has been disturbed and we feel harassed.
Would you be concerned?

Thank you,
Heinz

Heinz said...

Dear Donna DiMaggio Berger!

I wonder if Shakespeare ever had to deal with these issues? I am sure Don Quixote would just have said "Move your cart, or I will tear your windmill down".

We live in Utah and have lived in our condo for nearly eight years. We have never had a parking problem; one car in the garage, the VW camper van and the Pick Up in the the common areas. We have no signage whatsoever; no visitor area, etc.
The CC&R's have one paragraph applying to parking:

"No parking area shall be used for parking of trailers, mobile homes, boats, snowmobiles or campers which have been detached from trucks or repair of any vehicle, trailer or boat may be performed in any parking or common area. There shall be no storage of any kind, except of vehicles as above provided, in any parking stall or common area. Each Unit owner shall use only one (1) parking stall unless more parking stalls are assigned by the management". Then there are Parking Rules:

".....First Violation, Verbal Warning; Second Violation, Written Notice from Board Member; Third Violation, $50.00 Fine; Fourth Violation, Vehicle Towed at Owners Expense; Final Disposition, Legal Action"

A new VP, seven month tenure, towed our Pick Up.

We are taking him to Small Claims Court.

Your posting is helpful. Grandfathered? Doctrine of Waiver? Statute of Limitations (Six Years in Utah) based on written instrument (CC&R's).

Courts have held that if Rules are in conflict with CC&R's. the CC&R's govern.

Our HOA is not incorporated.

Enjoy! and Thank You!

Donna D. Berger, Esq. said...

Hi Heinz,

You live in another state with an entirely different statute but there are some commonalities amongst basic community association laws.
Typically,board rules cannot conflict with or create new restrictions which don't already exist in the governing documents.
Every board rule is tied to a reasonableness standard and board practice must be applied uniformly and consistently. If you did not receive the proper notices prior to towing, if the board had no authority to pass a rule regarding towing, if the proper signage for towing is not in place, etc. you can challenge the towing action. You indicate that one board member took the lead on this. Where does the rest of the board stand? Board members must understand that they all play a role on the board and the unilateral actions of any one director which are outside the true scope of his or her authority put the entire board at risk. Sounds like the rest of the board needs to take a stand on the issue of towing in your community.

Heinz said...

Dear Dr. Berger,

Thank you for your comment.

Our current Board is not functional. Our By-Laws are for a dissolved Corporation. These By-Laws call for a non-profit corporation. The 'President' incorporated for-profit by an authority, which is not connected with our HOA. The By-Laws also have a Compensation clause, which states Board Members are not to be compensated. The Board Members do not pay their monthly dues, which constitutes compensation.
The reason for the Small Claims Court action is to educate the Board.
heinzsites@yahoo.com

Heinz said...

I actually hate to belabour this, but it is interesting that the Newsletter states the following:

"There is to be only one vehicle per parking space".

"Third and more vehicles are to be parked in guest parking".

Thanks,
Heinz

Anonymous said...

She told me that I should have parked on the street, because if I had left my car on the street overnight, it would have been cheaper to get a ticket. (The tow cost me $150 plus fifteen dollars for a taxi.)

She told me that the only time that we are allowed to park in the guest parking without a permit, is when they seal the driveways. We were given written notice a few weeks after the painting was finished, that the driveways would be sealed, and that we had to move our cars. We were advised that parking permits would not be necessary.

I have asked the painting company if they had advised the management company or anybody else that the cars would need to be moved, but after a week of email and phone messages, they have yet to respond.

The only reason that I moved my car was because I was asked. I parked in the guest parking spot so that I would not be on the street. We had been notified in advance in the past when we needed to move our cars, and I did not think about that only being in cases when driveways were sealed. As far as I knew, I was asked to move my car, and I did.

I contend that the painting company should have advised the management company that we would need to move our cars, and then the management company should have advised us as to how to do so. It is typical of the management company to accuse a resident of being at fault, and that is what they are saying to me in this case.

Anonymous said...

John Olsen

My car was towed on July 17, 2010, between four and five in the morning, from the guest parking space across from my building.

Each building has four units, and thus four garages with a driveway. We are allowed to park one car on our driveway (and one in our garage.)

In the beginning of July, we were notified by the management company, that the buildings were going to be power washed and painted. We were not advised to move our cars. The work was started on our building on July 15.

We have guest parking spots, and any vehicle parked there between two and six in the morning, has to have a parking permit. I understand and have always obeyed this regulation. On July 16, at 8am, I was woken up by an employee of the company that was painting the buildings, and asked to move my car. I parked it in a guest parking space, without a permit, because that had not been a problem at other times when we were required to move our cars from our driveways due to work being done.

I was not told where I should park, and when I could move the car back. I did not think about moving the car back, and quite frankly, I did not think that it was a concern, because I knew that work was going to be continued past July 16. I was not told why I had to move the car, I just did it. I was not asked to move my car again. (A neighbor was also asked to move her car out of her garage, because she wasn't going to be able to do so later.)

The management rep has told me that it was not the responsibility of the painting company to let me know when I could move my car back. In fact, she has gone out of her way to absolve them of any responsibility. She said that it was totally up to me to move my car back, regardless that I had been asked to move it.

Donna D. Berger, Esq. said...

Dear John,

A lot depends on whether or not your board has the authority to tow under its governing documents, whether they have routinely and uniformly enforced that policy over the years, whether proper signage is posted and what their agreement with the painting company required in terms of removing vehicles from the project area. It is also important to know who called for the car to be towed: the manager,the painting contractor or a board member. It sounds like you have some investigative work to do before deciding on a possible course of action.

Anonymous said...

Hi Donna,
Your blog was like sent from heaven to me and other neighbors in my condo complex that have had their cars towed.
My car was towed from my assigned parking space because I lost the parking permit the night before and I was told in the past that a notice would be placed in a car before it would be towed.
I went to the property manager's office the next day around noon, and the car was already gone. No notice.
The car port has the letters "tow away zone", but the sign at the entrance of the property doesn't have those words. Also, it doesn't have the name and address of the towing company and it is not located within 5' from the ROW line.
This towing company goes and tows cars almost everyday that belong to the residents parking either on their parking spaces or the ones marked "reserved".
The residents are provided with either stickers or a sheet of paper that says "temporary permit" and shows other info. If the owner of the car forgets to place that sheet of paper on the dashbord or if the sticker falls, the car gets towed without a notice.
Our Declaration of condominium papers or bylaws don't talk about towing. The rules and regulations booklet is the one that spells out how cars will be towed if they are parking either on assigned carports or "reserved" spaces without eihter the permit or the sticker. And such rules and regulations get changed or modified and residents are not notified of such changes.
Towing is used heavily more on those residents that are not "in tune" with the property manager and I also have seen more strict on those who owe Association fees or those residents taht are renting a unit whose owner is under foreclosure and owes fees.
There is a lot more going on on this complex, but what is making people more mad is the towing...
Please let me know what you think if you can... thank you so much for such a great blog!!!

Maggie

Anonymous said...

I live in a small condo. complex in Central Mass. We have 2 parking spaces per Unit, and tons of additional parking in a cul-de-sac area. We've got ONE neighbor, who thinks that the LAWNS, and/or the ISLANDS are the place to park when they have guests. Numerous letters AND fines have been sent, yet they continue to violate parking rules. The Board of Trustees wants to engage a towing company, and make it known, that parking on lawns & islands is NOT allowed, and that violators will be towed (at their expense) One Trustee seems to think this is illegal? That the Board cannot have violators towed. Doesn't sound right to me.

Donna DiMaggio Berger, Esq. said...

If the board wants to start towing it must first derive the authority to do so from the association's governing documents. If such authority doesn't currently exist, the board would have to propose an amendment to the declaration and then obtain the requisite membership approval for that amendment. After the board confirms that the governing documents empower them to tow, they should contract with a reputable towing company and be sure that company indemnifies them for any mishaps that might occur when towing cars. Residents and visitors need to be clearly told via proper signage that a towing program is in place. Improper towing can expose the board to liability for damage to vehicles and/or missing items inside those vehicles. Towing can be an effective tool but, as with most other tools, it should be used with deliberate forethought and proper planning and execution.

Donna DiMaggio Berger, Esq. said...

In response to Maggie's situation, there appears to be an abuse of power that is occurring as well as having the authority to tow derive from board rules as opposed to the governing documents. Board authority derived from rules the board makes itself as opposed to authority conveyed by the developer or the membership via amendment are two entirely different things. Board rules are much more vulnerable to a challenge. Maggie, if your neighbors feel as you do that the ongoing towing program is an abuse of power and perhaps not proper under your governing documents then my best suggestion is to vote in a more responsive board which will in turn hire a manager who employs more reasonable enforcement methods.

Anonymous said...

i have a car that has a sticker that was placed to be towed. How long do have when that sticker is placed on the car to remove vehicle??

RogerBarton said...

My car was just towed from a community in Lake Nona for overnight parking on the street. There is one sign in the community at the front gate, but the sign does not state Towing Zone, the towing company information, etc. it just says No overnight street parking between the hours of 2 Am and 6 AM, Towing Enforced. No other info. I called 911 because I thought my vehicle was stolen, They also towed it to an impound almost 16 miles away and it cost me 135.00 for the towing company to release it. I tried calling the management company because I believe they illegally towed my vehicle, based on what I read signage requirements for Florida Statutes 715.97 and I would like to be paid for reimbursement as well as reimbursement for my time and effort. Am I wrong ? They seem to be ignoring my emails, my phone calls, and my faxes. I cant imagine how many other people have been illegally towed in this community.

Donna DiMaggio Berger said...

There are certain statutory requierments which must be followed when towing. Whether that is the manager's, board's or towing company's responsibility is dictated by the respective contracts they entered into with each other.

In any event, if you feel your statutory rights have been violated, you can certainly bring an action in Small Claims Court. If you aren't getting anywhere with the management company then perhaps you should bring your concerns up directly to the board and, failing that, proceed with your Small Claims Court lawsuit.

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