Last Monday, my car was towed from a business. Wrongly, I believe. Suddenly and without warning, I was plunged into an episode of Sarasota's version of the A&E series "Parking Wars."
I learned that when it comes to towing, possession really is nine-tenths of the law, at least temporarily.
I also learned that if lawyers are sharks, then towing companies are whatever eats sharks — and that they bill at higher rates, to boot.
Finally, I learned that only a masochist wants to be in a dirt lot in the middle of nowhere pleading for the return of their car and having to take out a second mortgage to get it back.
The ordeal made me reflect on the parking issues that confront community associations. Florida's towing statute is Section 715.07. That law governs the parking of vehicles and vessels on private property. The law defines a "vehicle" as virtually anything with wheels. A "vessel" is any means of water transportation. For the purpose of simplicity, I will lump all those things together and call them "cars."
The law was amended many years ago to specifically authorize a designated representative of a condominium association to order an unauthorized car to be towed from the condominium property. HOA's would have similar authority over property owned by the HOA.
The question is whether it is better to have towed or never to have towed at all. If a community association chooses the towing option, the board of directors needs to understand that the law considers that as a "self-help" remedy. In the event of a legal challenge, a judge will strictly construe the law to determine if the association acted within its authority. The towing statute specifically states that towing authority must be in strict compliance with the law's conditions and restrictions.
Like so many other aspects of Florida law, parking is heavily regulated. Whether those regulations are regularly or uniformly enforced is a whole different matter. Associations need to have a clear understanding of the rules. The law dictates where tow-away signs must be posted and the language that must appear on the signs.
An association that takes the towing route should adopt rules for the procedures that will be followed. Optimally, the recorded governing documents should spell out that unauthorized cars can and will be towed.
A community association will need to enter into a contract with a towing company for towing services and will need to post the name and phone number of that company on its tow-away signs. The company is prohibited by law from paying or accepting anything of value for the "privilege" of towing cars from the property.
Posting tow-away signs everywhere can create visual pollution and may be considered unacceptable. An alternative exists under the law.
If you live in a house and someone parks in your driveway without your permission, you can have that car towed without posting a sign. An association can dispense with signs if it first gives personal notice to the owner or other person in control of the car that where it is parked is unauthorized and subject to removal.
The statute is not exactly clear as to what constitutes personal notice. A good practice is to tag the car with a written warning. Take photos of the car with the tag and of the license plate and be sure to stamp them with the time and date. If you know the owner of the car, contact him by phone or by any other method that is on file with the association.
Prior notification is a good idea anyway, unless the violation is an egregious one, such as blocking a right of way or a handicapped space. Towing a vehicle for a first violation is an extreme remedy.
The issue of guest parking can be particularly problematic for an association. It has a legitimate interest in knowing who is parking on common property. It should have policies for the registration of overnight guests and their cars. Be sure residents are aware of these rules and alert them that an unregistered car is subject to being towed.
Spring break is upon us. This can cause serious problems for associations, especially for communities on the beach. Policies to deal with the issues of securing the property and preventing trespassers need to be in place. It may be necessary to hire security personnel to enforce the rules. That is permissible, even though it is expensive. The Condominium Act specifically deems the costs of securing a condominium to be a legitimate common expense.
Towing is one tool in the association's toolbox for enforcing parking rules. Just do it carefully. Civil and even criminal penalties exist for violating the law when towing cars from private property.
Finally, all kidding aside, the towing company that removed my car may have just been following directions and may not have been at fault. Just like the police officer who makes you roll down your window to give you a ticket when you know you blew through a red light. Or a process server at your door hired by an attorney. Or, in my case, the woman who does my waxing. Being on the receiving end of things like those are "ouch" moments.
An association board needs to be careful not to inflict pain unless it knows it stands on firm ground. It is best to first take the least-punitive action to remedy a violation.
If that does not work, then bring out the big guns.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tew@lawbywiseman.com.
