Berding | Weil - Attorneys At Law

How to Tow

Notice and Authorization Procedures, Requirements and Penalties

by Sandra M. Bonato, Esq.

Background

Prior to January 1, 2007, community associations had their own special procedural statute for towing unauthorized vehicles. That statute – Vehicle Code section 22658.2 – had both stand-alone features for associations' special circumstances and numerous cross-references to the general statute in California for towing from private property.

While having a discrete statute was superficially helpful, it in fact made towing quite difficult to implement. Its terms were simultaneously clear and ambiguous, and the multiple cross-references were hard to follow and legally troubling for directors and managers trying to keep parking problems under control. From time to time, associations that towed would be challenged in small claims court and get tripped up on technicalities.

From the legislature's perspective, the issue of towing gradually became more about consumer protection than parking control and fair access to spaces. The legislature took up the issue of towing procedures in its 2005-2006 session, largely concerned with ensuring that tow truck operators and towing companies have clear instructions for notifying law enforcement agencies when they remove vehicles, maintaining evidence of written authorization for tows, and requiring standards for tow charges, money handling and vehicle release. Further goals of the legislation were to reduce the potential for violent confrontation between angry vehicle owners and tow truck operators, to require immediate and unconditional release of vehicles on demand when not yet fully hitched up, and to minimize incidents in which motorists and passengers are stranded in unfamiliar and possibly unsafe locations.

Guidance for Persons Authorizing Tows

Embedded in the towing law are a number of specific procedural requirements for persons who authorize tows from private property, including from common interest developments. These requirements are generally patterned after prior law and several terms are familiar. However, particular features of the current towing law offer better clarity about notice and authorizing procedures, along with a few new steps for associations and serious penalties for disregarding the statute's requirements.

In the legislative process, the special CID towing statute – Vehicle Code section 22658.2 – was repealed for 2007. Towing procedures for community associations are today expressly incorporated into the general statute for towing from private property – Vehicle Code section 22658. (See pg. 80 of Berding & Weil's 2007 Community Association Statute Book).

For commercial CIDs, special rules can be found in a separate statute – Vehicle Code section 22953 – authorizing towing from commercial property held open to the public. (See pg. 83 of the Statute Book.)

Authority to Tow

When challenged by a vehicle owner following a tow, two questions generally emerge: “What authority does the association have to tow cars?” and “On what basis did it tow mine?” These questions usually get asked in small claims court, when the vehicle owner sues to recover towing and storage charges.

Often assumed, an association's right to tow isn't automatic. That authority must derive from a statute, local ordinance or the governing documents (typically, the CC&Rs or validly adopted parking and towing rules). Because an association may only have unauthorized vehicles removed, it has to establish what that term means.

Vehicle Code section 22658 acknowledges that the following types of vehicles can be towed from private property: (1) obviously inoperable vehicles, (2) vehicles parked in fire lanes, (3) vehicles unlawfully parked within 15 feet of fire hydrants, and (4) vehicles that impede access to, from or within the development. (The repealed CID towing statute included vehicles parked in disabled parking spaces without proper placards or plates, but revised section 22658 does not mention this circumstance. There is a surviving reference in the towing statute affecting commercial property held open to the public, leaving a question as to whether such vehicles can be privately towed from multi-residential property absent specific rules.)

Towing for reasons not cited in the statute must arguably be authorized in a parking restriction or valid parking rule in order to establish that a particular vehicle in a particular location within a development is unauthorized and thus subject to tow.

TOWING PROCEDURES

Section 22658 is largely a “procedural” statute, i.e., it tells associations how to tow, not if they can. Assuming the underlying authority to tow exists, the newly revised statute contains three basic elements that directors and managers must follow: (1) prior notice to vehicle owners, (2) proper written authorization for tows, and (3) a mandatory reporting requirement to local law enforcement and, if the vehicle owner asks, to promptly state the grounds for the tow. These three elements of the statute must be understood and followed in order for a tow to be procedurally valid and penalty-free. While having a proper legal basis for a tow is essential for it to be valid, how the towing is accomplished is equally relevant.

Prior Notice to Vehicle Owners

To adequately put vehicle owners on notice that cars can be towed, an association must do at least one of the following before having a vehicle removed:

  • Post signs of regulation size and content at all entrances to the development warning that public parking is prohibited and that unauthorized vehicles are subject to tow at their owners' expense. Specific sign requirements are discussed below.
  • Issue a parking violation notice (placed on vehicle or otherwise) at least 96 hours before towing.
  • In the case of an obviously inoperable vehicle (on general common area within the control of the association), notify local law enforcement at least 24 hours before towing.

Failing to comply with the prior notice requirements could expose the association to liability to the vehicle owner for double the towing or storage charges, even if the tow is otherwise valid.

Written Towing Authorization

1.   General Authorization

Section 22658 allows an association to have a general towing authorization agreement with a towing company for towing services. Such agreements must be in writing and properly signed. With a general agreement, an association can authorize a tow truck operator to patrol the parking areas of the development and, in his or her discretion and without additional written authorization from the association, tow vehicles in the following three specific circumstances: (1) vehicles parked in fire lanes, (2) vehicles unlawfully parked within 15 feet of fire hydrants, or (3) vehicles parked in a manner that interferes with ingress or egress to, from or within the development. Because the authorization in such agreements is not specifically confirmed each time a tow occurs, they must be very carefully and narrowly drafted.

If an association uses a general towing authorization in these specific circumstances, it appears that either signs or 96-hour notices must be used as prior notification to vehicle owners. (We point this out because it represents a significant change in towing practices. The prior CID towing law required specific, signed authorization to the tow truck operator to tow in these special circumstances and did not require signs.)

The owner whose vehicle is towed for fire lane or fire hydrant violations or for blocking access is given a copy of the association's general authorization agreement with the towing company upon claiming his or her vehicle. Since it has no specific authorization from the association, the towing company must also provide the vehicle owner with photographs that clearly show the violation, photographs that the tow truck operator is obligated to take before completing the tow and to retain afterwards.

If an association permits discretionary towing for any of the three specific purposes without first entering into a written general towing agreement with the towing company, even if the tow is otherwise valid, the association (through its board of directors) can be guilty of a misdemeanor punishable by a fine of up to $2,500 and/or imprisonment in the county jail for up to three months. The association will also be liable to the vehicle owner for four times the amount of the towing and storage charges.

2.   Specific Towing Authorization

Associations can summon tow trucks to remove unauthorized vehicles. In such cases, an authorized representative of the association must be present on the development at the time of the tow, though s/he need not be physically present at the location of the tow. Before the vehicle can be towed, the association's representative must first give specific written authorization to the tow truck operator, which must include all of the following:

  • The make, model, vehicle identification number, and license plate number of the vehicle to be removed.
  • The authorized representative's name, signature, job title, residential or business address and working telephone number.
  • The grounds for removing the vehicle.
  • The time when the vehicle was first observed parked at the development.
  • The time that authorization to tow the vehicle was given.

If the association does not follow these authorizing requirements when requesting a tow, even if the tow is otherwise valid, the association (through its board of directors) can be guilty of a misdemeanor punishable by a fine of up to $2,500 and/or imprisonment in the county jail for up to three months. The association will also be liable to the vehicle owner for four times the amount of the towing and storage charges.

NOTE: When the vehicle owner claims his or her vehicle, s/he will be given a photocopy of the written authorization. If the tow was from residential property and to protect the identity and privacy of the authorizing person, the towing company must redact (i.e., cover over or remove) the name and other personal information of the authorized representative of the association before giving a copy to the vehicle owner.

Reporting

1.  Reporting Tows to Local Traffic Law Enforcement

When authorizing a specific tow, the association's authorized representative must telephone the local traffic law enforcement agency within one hour after the tow is authorized and inform officials of the tow. If telephoning within the hour is impractical for some reason, then local law enforcement must be notified by the most expeditious means available.

The local traffic law enforcement agency will generally be the local police department in incorporated areas, the local sheriff's department in unincorporated portions of counties, or the California Highway Patrol if responsible for traffic enforcement in a particular locale. The towing company will have this information; however, call the agency to confirm.

The tow truck operator has an independent obligation to notify local traffic law enforcement of the tow once the vehicle being towed is off the premises and in transit, but this does not relieve the association of its own obligation to call. However, there is no express penalty in the statute for failure of the association's authorized representative to telephone the authorities.

2.  Responding to Vehicle Owner Requests for Basis for Tow

If the vehicle owner asks the association to tell him or her the basis for the tow, the association must state the grounds for removing the vehicle. The statute does not give details; presumably the grounds may be requested and given in any manner (i.e., in person, telephonically, in writing; electronically; etc.) and, if requested, must be given with reasonable promptness. In all cases, it is recommended that the association keep a written record of such requests, when and how they were received, when and how the grounds were provided, by whom, and the grounds stated.

If after being asked an association fails to provide the grounds for the tow, the association could be liable to the vehicle owner for double the storage or towing charges, even though the tow was valid.

GENERAL PROVISIONS

Liability for Damage to Towed Vehicles

The tow truck operator and the towing company, not the association, are liable for damage caused to towed vehicles. However, if it can be shown that the vehicle was damaged due to an intentional or negligent act of the association, it can be liable for the damage.

Liability for Invalid Tows

The statute provides that tow truck operators and towing companies are not responsible “in any situation” for determining whether a tow authorized by an association is valid. An exception can arguably be made when a vehicle is removed by a tow truck operator, in his or her own discretion under a general towing authorization agreement, in the three circumstances referenced in the towing statute. The terms of the agreement should include protections for the association in this regard, to offset the statute's exculpatory language and to minimize the chance that the tow company's liability might remain with the association. Such agreements should be reviewed by association counsel.

If a tow is specifically requested and the association's authority for the tow is ultimately invalidated, the statute does not provide the vehicle owner with a multiple-penalty remedy. Presumably the vehicle owner can recover just the towing and storage charges in small claims court.

Interrupted Tows

The towing statute requires tow truck operators, on the vehicle owner's request, to set down vehicles, immediately and unconditionally, that are hitched or ready for tow but that are not yet in transit, i.e., still within the boundaries of the development. In that case, the tow truck operator is entitled to payment from the vehicle owner of up to 50% of the towing charge if the association's authorized representative requests such payment on the tow truck operator's behalf.

The statute is not at all clear how the tow truck operator is supposed to collect these sums. However, the association's request appears to be essential to any recovery for the operator, presumably in small claims court. Towing authorization agreements should specifically address this issue and, unless the association is willing, ensure it is not itself liable for the charge and have to seek reimbursement from the vehicle owner.

The statute is clear that if a vehicle is released before it is towed, the vehicle owner must immediately move the vehicle to a lawful location. The vehicle may not remain in the unauthorized location or be moved to another similarly unauthorized location.

Written Towing Authorization Agreements / Attorney Review Tow Company Interviews

The heightened degree of liability for both associations and towing companies reflected in the towing statute suggests that “boilerplate” written towing authorization agreements (whether general or specific) from towing companies might contain liability-shifting provisions that favor them or that overlook important association protections. It is strongly suggested that associations have counsel review written towing authorization agreements and forms.

Having a balanced, properly drafted agreement is particularly critical if an association plans to delegate authority to a towing company for discretionary towing of vehicles in fire lanes, near fire hydrants, or that are blocking access. As a proactive measure, association counsel familiar with the towing statute can also prepare agreements with properly protective provisions, as well as authorization forms for association representatives to use when summoning a tow truck.

Signage

Towing signs must comply with all of the following requirements:

  • Be displayed, in plain view, at all entrances to the development
  • Be not less than 17 inches by 22 inches in size
  • Contain lettering not less than one inch in height
  • State that public parking is prohibited and indicate that unauthorized vehicles will be removed at the owner's expense
  • Contain the telephone number of the local traffic law enforcement agency
  • Contain the name and telephone number of each towing company with which the association has a written general towing authorization agreement

NOTE: A contracting towing company will often provide regulation signs to an association without charge.

The failure to comply with the sign regulations (or, if signs are not used, the 96-hour violation notice procedures) can result in the association being liable to the vehicle owner for double the towing and storage costs, even though the tow is otherwise valid.

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