THINGS TO KNOW BEFORE YOU TOW

BY KYLE E. LAKIN, ESQ.

IN ADDITION TO COMPLYING WITH AN ASSOCIATION’S GOVERNING DOCUMENTS, THERE ARE STATUTORY REQUIREMENTS AN ASSOCIATION MUST SATISFY WHEN TOWING A VEHICLE. FAILING TO COMPLY WITH THESE REQUIREMENTS CAN LEAD TO FINANCIAL PENALTIES AND LIABILITY FOR AN ASSOCIATION. THIS ARTICLE REVIEWS THE BASIC REQUIREMENTS AND DISCUSSES SOME BEST PRACTICES TO FOLLOW.

STATUTORY REQUIREMENTS

Vehicle Code § 22658 authorizes associations of Common Interest Developments to tow wrongfully parked vehicles in certain conditions provided the documentation, notification, reporting, and other requirements of § 22658 are followed.

First, Confirm One of the Conditions to Tow is Satisfied.

Per Vehicle Code § 22658(a), there are three conditions in which an association may tow a wrongfully parked vehicle:

1. Proper Signage Posted. There is a sign posted in plain view at each entrance to the property that meets the size and wording requirements of § 22658; or

2. Prior Written Notice Given. The vehicle has been issued a notice of parking violation and 96 hours have elapsed since the issuance of that notice; or

3. Inoperable Vehicle. The vehicle is on private property in lawful possession of the association (e.g., depending on the association’s governing documents, this might include common area owned or controlled by the association); the vehicle lacks an engine transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways; and the association has notified the local traffic enforcement agency (e.g., local police, sheriff, or whatever the case may be), and 24 hours have elapsed since that notification.

CAUTION: An association that fails to satisfy one of the statutory conditions and tows a vehicle is liable for double the storage or towing charges.

Second, Provide the Towing Operator Written Authorization.

If the association is initiating the tow, Vehicle Code § 22658(l)(1) requires that it provide the tow operator written authorization to remove the vehicle that includes the following information:

1. Make, model, vehicle identification number, and license plate number.

2. Name, signature, job title, address, and telephone number of the person authorizing the removal of the vehicle.

3. Grounds for removal of the vehicle.

4. Date and time when the vehicle was first observed parked at the private property.

5. Date and time that authorization was given to tow the vehicle.

The person authorizing the tow can be an employee or agent of the association, but the person must be present at the time of removal and verify the alleged parking violation.

Third, Notify Local Traffic Law Enforcement.

Within one (1) hour after authorizing the tow, the association must notify local traffic law enforcement by telephone or, if telephone notice is impractical, by the most expeditious means available. (Veh. Code § 22658(f).) In addition, per subdivision § 22658(b), the tow truck operator must give notice of the tow to the vehicle owner.

MAINTAIN DOCUMENTATION

To help protect the association against a vehicle owner challenging a tow, it is important to document the grounds for the tow. Documentation may include pictures of the vehicle in violation and any posted signage related to towing. Multiple pictures may be helpful to show the length of time the vehicle was wrongfully parked. Also maintain a copy of the written authorization to the tow company for removal of the vehicle and written notification to law enforcement of the tow. Finally document any efforts to notify the vehicle owner of the violation and tow. If the association has a security or patrol vendor that is involved in parking enforcement, make sure they are informed of the current parking regulations for the community and understand the documentation the association needs to document parking violations.

CONTRACTING WITH THE TOW OPERATOR

An association may not delegate towing discretion to its tow vendor except (1) in the case of a vehicle unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the private property, and (2) there is a written agreement granting such general authorization to the tow vendor under the circumstances described in (1). (Veh. Code § 22658 (l)(1)(E).)

Consult with the association’s legal counsel before entering a contract with a tow company and before the first tow at the development to ensure that the proper authority for towing exists in the governing documents and the association is following the appropriate towing procedures. Legal counsel can review the contract for, among other things, terms that are overly one-sided in favor of the tow operator, minimum conduct/standards the tow operator must follow, and provisions that will protect the association (e.g., insurance and indemnification terms).

VEHICLE OWNER’S RIGHTS

The vehicle owner has certain rights under Vehicle Code § 22658. For example, if requested by the owner of the vehicle, the association must state the grounds for removing the vehicle.

In addition, contrary to what you might have seen on tv, online or in the movies, if the vehicle owner or his/her agent requests release of the vehicle before the tow operator removes the vehicle from the property and is in transit, the tow operator must “immediately and unconditionally” release the vehicle. (Veh. Code § 22658(g)(1)(B).) However, the owner must move the vehicle to a “lawful location” (Veh. Code § 22658(g)(2)) and depending on the stage of the towing process when the release was requested, the owner may be required to pay a portion of the towing charge (Veh. Code § 22658(h)).

TOW POLICY

Before towing, consider implementing a tow policy to ensure that the association complies with the Vehicle Code, residents are on notice of the circumstances under which an association will tow a vehicle, and proper documentation is maintained for each tow.

Kyle E. Lakin, Esq. is a partner of Delphi Law Group, LLP and specializes in community association law. He services Southern California.