TOWING OF VEHICLES --
TRY IT, YOU’LL LIKE IT
We generally do not recommend the use of self-help enforcement tools. However, due to its amazing effectiveness and limited liability when done properly, we make an exception for the towing of improperly parked vehicles. BUT WAIT, before you start hooking up those vehicles, please remember that you must strictly follow the laws that permit you to tow or you will find yourself in a heap of trouble.
AUTHORITY TO TOW:
The power to tow vehicles is granted by Section 715.07, Florida Statutes, as follows:
(2) The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances:..... (Emphasis added.)
HOW DOES THIS APPLY TO COMMUNITY ASSOCIATIONS:
The above language directly applies to most community associations because:
a. Many homeowners associations (HOA’s) own their roadways and common property; and
b. Condominium associations are specifically granted the power to tow.
WHAT IS A VEHICLE:
As used in Section 715.07(1), 'the term ‘vehicle’ means any mobile item which normally uses wheels, whether motorized or not.' Accordingly, this law is not just limited to standard automobiles.
YOU CAN ONLY TOW FROM PROPERTY YOU OWN AND/OR CONTROL:
It is vitally important to remember that Section 715.07 limits the areas from which vehicles can be towed. HOA’s may only tow vehicles from property that it owns (including private streets). Of course, by definition, this means that HOA’s may not tow vehicles from private lots or driveways or from public streets. Condominium associations may only tow vehicles from common element property or property that it owns in its corporate capacity.
YOU CAN ONLY TOW WHEN A VIOLATION ACTUALLY EXISTS:
Although 'parked without permission' is not clearly defined, Section 715.07 clearly intends that the vehicle must be violating a valid, reasonable and identifiable restriction. The fact that an association simply doesn’t like a particular vehicle (or its owner) does not give it the power or the right to tow it from the community.
Therefore, the first step in any towing process is to ensure that the restriction being violated is:
a. valid (properly adopted);
b. reasonable (logical, not overbearing); and
c. identifiable (specifically stated in an association restriction or rule).
YOU ARE ONLY PROTECTED WHEN YOU STRICTLY FOLLOW THE LAW:
In order to avail itself of the liability protections afforded by Section 715.07, community associations must strictly comply with the technical requirements found in that law, which are broken down into the following two categories:
A. REQUIRED NOTICE TO THE OWNER OF THE VEHICLE:
Prior to any towing, you must ensure that the owner of the vehicle is aware of the possibility that his or her vehicle will be towed. This can be accomplished in one of the following three ways:
1. The owner of the vehicle may personally authorize the towing (this of course will never happen);
2. A notice must be personally given to the owner of the vehicle (or their appropriate agent) 'that the area in which that vehicle is parked is reserved or otherwise unavailable for unauthorized vehicles and subject to being removed at the owner’s or operator’s expense; or
3. Signs must be posted on the property in the specific manner required by Section 715.07(5) (e.g. size, location, content, lettering, etc.)
B. REQUIREMENTS RELATING TO THE ACTUAL TOWING:
Assuming that you have met the requirements of step one, you must also ensure that the following other requirements are met:
1. The towed vehicle must be stored at sites that are within established distances from the community depending on the size of the county (e.g. within 10 miles for all counties that have at least 500,000 residents).
2. The storage site must be open to deliver the vehicle back to the owner during designated hours or be available within one hour by telephone.
3. The towing company must advise the appropriate law enforcement agency of such towing within 30 minutes after the towing occurs.
4. If the owner of the vehicle arrives during the towing process, the towing company must disconnect the vehicle and allow the owner to voluntarily remove the vehicle upon the payment of a reasonable service fee of not more than ½ the posted rate for such towing.
5. The community association may not receive a rebate, money or other consideration from the towing company.
6. The towing companies must file their rates with the local law enforcement agencies and post the same rates at the storage site.
7. The vehicles used for towing must be clearly marked with the name, address and telephone company of the towing company.
8. Entry into the vehicle to permit towing must be done with reasonable care.
9. Any towed and stored vehicle must be released within one hour after the request for and the payment of the applicable charges.
10. The signing of a release may not be required as a condition of the release of the vehicle back to the owner.
LOCAL GOVERNMENTAL RESTRICTIONS:
Section 715.07 permits local governments to enact additional regulations relating to towing inside their jurisdiction, including the regulation of rates. For instance, Orange County requires that a written agreement, with specific terms, be executed between the towing company and the property owner (e.g. association) prior to the towing of the vehicle. Accordingly, it is important to check with your local government to insure that you have also complied with its requirements.
CIVIL PENALTIES FOR FAILING TO FOLLOW THE LAWS:
Each local law may have its own penalties, however, Section 715.07 provides for the following two civil penalties:
(2)(a)6 ...Such person or firm shall be liable for any damage occasioned to the vehicle if such entry is not in accordance with the standard of reasonable care.
(4) When a person improperly causes a vehicle to be removed, such person shall be liable to the owner or lessee of the vehicle for the cost of removal, transportation and storage; any damages resulting from the removal, transportation, or storage of the vehicle; attorneys’ fees and court costs.
CRIMINAL PENALTIES FOR FAILING TO FOLLOW THE LAWS:
Again, each local law may have its own penalties, however, Section 715.07 provides as follows:
(5)(a) Any person who violates the provisions of subparagraph (2)(a)2 or subparagraph (2)(a)6 is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person who violates the provisions of subparagraph (2)(a)7 is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084.
Thankfully, the criminal penalties would only apply to the towing companies for failure to comply with their requirements.
IMPLEMENTING THIS ENFORCEMENT TOOL:
As we addressed in an earlier e-Lawyer, the Board of Directors makes most of the decisions on behalf of the association. Accordingly, the Board should carefully weigh the advantages and disadvantages of using this self-help process. If it decides that it will utilize this valuable tool, it should then meet with its legal counsel to create a 'Towing Procedure' to be strictly followed. At a minimum this should include a list of the restrictions that would warrant the towing of a vehicle and the appointment of a person or persons who would have the authority to contact the towing company.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2004 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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