To Tow or Not To Tow – That is a Question of Liability – Article by Feldsott & Lee A Law Corporation
Illegal parking is a common problem for Associations. The problem begins the same way every time. Someone, but you’re not sure who, parked his/her car in guest parking. Only that is not the real problem. The real problem is that the car is dirty, dented, and now it is leaking oil over the freshly slurried parking lot. You are not in the parking lot 24 hours a day, but you get the feeling that the car has been abandoned. So what do you do?
Unfortunately if your first reaction is to tow the car or add a fine to a homeowner’s assessment account, you may be exposing the Association to liability or inhibiting the Association’s ability to rid itself of these problems in the future. This article will discuss the two remedies available to the Association, fining and towing, and the proper procedures that should be used to make these remedies effective.
If the CC&Rs permit fines, the Association may fine owners as long as the homeowner is given an opportunity for a hearing on the matter. Many CC&Rs and rules set out specific procedures that must be used. Therefore a review of these documents is essential to be sure that the Association has complied with hearing requirements. For example, one Association in Los Angeles requires these hearings to be conducted on the third Monday of the month. Even if the governing documents do not require a hearing, due process considerations mandate that the homeowner be given an opportunity to be heard. Some CC&Rs also allow the Association to fine owners for the violation of the CC&Rs and rules by the owner’s guests and tenants. However, fining can not be utilized if the identity of the vehicle owner is unknown.
Fines, however, are no longer as effective in enforcing the governing documents. With the 1997 changes to the Davis-Stirling Act, fines for parking violations are not collectable as assessments and therefore a lien may not be recorded against the property. Instead, the Association will need to collect these fines in small claims courts. Therefore, towing has become a more attractive alternative. In theory, this forces the homeowner to prove that the car was invalidly towed, rather than the Association having to prove that the homeowner was properly fined.
Towing, therefore, has become a better alternative, despite the rigorous guidelines the legislature now mandates for Associations. Prior to towing, the Association should develop a protocol which is in compliance with California law. This may be easier than you think, because the legislature has already come up with your procedures. These are codified in Vehicle Code section 22658.2, which applies specifically to homeowners associations. However, in addition to those requirements specified by California law which are discussed below, you should also read the Association’s governing documents to make sure there are not more stringent procedures set forth therein, such as notice requirements or prohibitions against towing.
With the exception of a few circumstances discussed below, the law requires that certain warnings be given prior to towing. The first warning the Association will always need is a sign bigger than 17 x 22 inches, with lettering bigger than one inch, at the entrance(s) of the development. The sign should state public parking is prohibited and all vehicles not authorized to park on the common interest development will be removed at the owner’s expense. The telephone number of the local traffic law enforcement agency is________. Some jurisdictions may require that this exact language be used, however, it is unlikely that a small claims court judge will rule that the towing was unlawful if your sign has language very similar to, but not exactly what is specified in the code.
Before towing, you should consider giving out as much written warning as possible. It may not be required by the law or your governing documents, but it will result in making your Association a nicer place to live and it can only serve to make your case stronger if you end up in court. The one thing a judge can not stand is a party who received warnings time and time again that the action was going to be taken and ignored the warnings, only to turn around and complain about it after the fact.
But, in a few cases you will not have to give any advanced warning. For example, if the car is parked in a marked fire lane, within 15 feet of a fire hydrant, in a handicapped parking space (without a handicapped placard or license), or in a manner which interferes with the entrance or exit of the Association or a separate interest in the Association (e.g. a driveway), California statute authorizes immediate towing. Please be forewarned, however, that the code’s reference to entrance or exit is most likely intended to refer to one that is actually being used. In San Diego, I have successfully argued that it was illegal for a car to be towed from a driveway that was raised five inches from the curb because the driveway was no longer intended for ingress and egress. Even in circumstances where you are justified in towing the car without warning, if you can locate the driver it is better to ask that person to move the car first in order to maintain peace in the community.
After towing the car, there are additional notice requirements. In order to comply with California law, the Association must do the following two things:
- The Association, or its agent, must give the local traffic law enforcement agency notice of the towing, which must include the description of the vehicle, the license plate number, and the address from where the vehicle was removed.
- If you know the owners identity or can ascertain it in some way the Association, or its agent, must notify the owner by first-class mail that the car has been towed within a reasonable time after the towing. It is good practice to state why the car was towed as well. In order to save the owner storage costs, the Association can also post the notice on the owner’s door, although this is not required; or
- If you do not know the owners identity and the vehicle is not returned to the owner within 120 hours after removal, you must notify the Department of Justice (Sacramento) in writing. The Department has a pre-printed form for the report. A copy of the report also must be sent to the garage where the car is stored.
- If you follow these procedures, the Association should not be held responsible for any damage to the car caused by removal itself. However, if the car is scratched or dented during the storage or removal process the Association may have to pay for repairs, and then turn around and seek reimbursement from the towing company. Therefore, you should do everything possible to make sure the towing company is careful.
In summary, the Association and its agents should establish a protocol now so that when it becomes necessary to take action, the Association may remedy the parking problem without needlessly exposing itself to liability. In establishing this protocol, the Association must review the governing documents for specific requirements, in addition to complying with California law as stated above.
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