Prepared By David C. Swedelson.
We are amazed by the number of board members and managers that do not know that there is a Vehicle Code Section (§22658) that addresses how and when California condominium and planned development community associations can tow vehicles that are not legally parked. Compliance with the Vehicle Code is required, and non-compliance could subject the Association to potential fines, legal liability and damages.
On January 1, 2007, changes and amendments to the provisions to California Vehicle Code §22658, relating to towing from private property, including common interest developments, went into effect. No longer can an association instruct security services or a towing service to tow vehicles that may not be authorized. Rather, the association must comply with the new stringent laws.
One of the things that the new law requires is that, to enable the association to tow, the association must post towing signs at each entry into the association’s premises that are a specified height, and each sign must contain a statement that public parking is prohibited and indicate that the vehicles will be removed at the owner’s expense. The signs must also contain telephone numbers of local enforcement agencies, as well as the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the association. Remember, the more information you have on the signs, the better protected your association will be.
Also under the new law, a towing company cannot remove or commence removal of the vehicle from your association’s private property, without first obtaining written authorization from the association, even if the signs are posted as referenced above. Additionally, an employee or Board member/agent of the association must be present, somewhere on-site, at the time of the removal in order to verify the alleged violation.
The association may still give a towing company a general authorization to tow at the towing company’s discretion, but only for a vehicle that is 1) unlawfully parked within fifteen feet of a fire hydrant; 2) in a fire lane; or 3) in a manner which interferes with any entrance or exit to or from the association (a red zone parking area).
California Vehicle Code §22658 requires that, to enable the association to tow, the association post towing signs at each entry into the association’s premises that meet the following requirements:
– The signs are at least 17 inches by 22 inches high, and contain lettering not less than one inch in height,
– the sign contains a statement that public parking is prohibited and indicates that the vehicles will be removed at the owner’s expense,
– the sign contains telephone numbers of local enforcement agencies, and
– the sign contains the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the association.
Remember, the more information you have on the signs, the better protected your association will be.
Pursuant to California Vehicle Code §22658, California community associations can now tow a vehicle based on any one of the following:
(1) the association has posted the towing sign, as referenced above. If the signs are posted as referenced above, no specific waiting time is required to secure removal of the improperly parked vehicle.
(2) the vehicle has been issued a Notice of Parking Violation, and more than ninety-six (96) hours have elapsed since the issuance of that notice.
(3) The vehicle is parked on association property, and lacks an engine, transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways, the association has notified the local traffic law enforcement agency of the inoperable vehicle and twenty-four (24) hours have elapsed since that notification period.
(4) The vehicle is parked on land owned by a single-family dwelling.
Under California Vehicle Code §22658, a towing company cannot remove or commence removal of the vehicle from your association’s private property without first obtaining written authorization from the association, even if the signs are posted as referenced above. The written authorization from the association must include the following:
(1) the make, model, vehicle identification number and license number of the removed vehicle;
(2) the name, signature, job title, residential or business address and working telephone number of the person who authorized removal of the vehicle (which can be redacted so that that information is not provided to the vehicle owner);
(3) the grounds for the removal;
(4) the time the vehicle was first observed parked within the association’s private property, and
(5) the time the authorization to tow was given.
Further, an employee or Board member/agent of the association must be present at the time of the removal, and verify the alleged violation. “Present” does not mean at that exact spot, but on the association’s premises.
The association will be required to notify (by telephone, or if that is not practical, the most expeditious means available) the local traffic law enforcement agency within one hour after authorizing the tow. Further, the towing company must also notify local enforcement agencies of the tow, within thirty (30) minutes after the vehicle is removed from the association’s property. The Association must make sure that this provision is included in any contract the association enters into with its towing company.
There are also new provisions to the Vehicle Code which require that the tow truck operator removing the vehicle must give written notice, both to the registered and legal owner of the vehicle, that 1) the vehicle was removed; 2) the grounds for removal; and 3) must indicate the place to which the vehicle has been removed. If the vehicle is stored in a storage facility, a copy of the notice shall be given to the owner of the storage facility. The notice must also include the amount of mileage on the vehicle at the time of removal, and the time of the removal from the association’s property. The information that is provided to the tow company, must also be provided to the homeowner whose vehicle was towed prior to their paying their impound charges for the tow, however that document can be redacted to remove the complaining owner’s name and address. If the tow truck operator does not know, and is unable to ascertain the name of the vehicle owner, then the tow truck operator must send a written report of the removal by mail to the Department of Justice, and file a copy of the notice with the proprietor of the garage in which the vehicle is stored.
Make sure that in any contract the association enters into with a towing company, that the towing company acknowledges in writing that they have an obligation (prior to accepting payment from the individual whose vehicle was towed) to give a photocopy of the written authorization to tow the vehicle. Again, the towing company is required to redact the information related to the name, signature, job title, residence or business address of the person who authorized the removal. In any contract the association enters into with the towing company, they must also agree to provide to the vehicle owner a notice that provides a telephone number of an appropriate law enforcement or prosecuting agency which states the following: “If you believe you have been wrongfully towed, please contact the local law enforcement, or prosecuting agency at [insert phone number]”.
Please note that the towing company is obligated, before they remove the unlawfully parked vehicle under a general authorization, to take a photograph of the vehicle that indicates any of these violations which give rise to a general authorization to tow. Further, prior to accepting payment, the towing company shall keep a copy of the photograph and give a copy (without charge) of the photograph to the vehicle owner.
If the association’s towing company is on the premises and prior to the tow, the vehicle owner or their agent can stop the towing company driver before the vehicle leaves the association’s premises, the owner can demand that the towing company immediately release the vehicle (even if it is coupled to the towing truck). If the vehicle is so released, the vehicle owner must immediately move the vehicle to a lawful parking location. The towing company can impose a charge of not more than one-half of its regular towing charge.
Additional obligations that are imposed on the towing company include that the vehicle must be stored within a ten mile radius from the association, they must accept cash and credit cards for towing and storing charges, they have to have a sign on their property saying they will accept cash or credit cards, they have to be able to make change for cash, and they have to have a public phone on the premises.
California Vehicle Code §22658 authorizes the levy of a fine of $1000 per violation to be assessed against a community association that causes removal of a vehicle from the premises without following the requirements for posting a sign and/or giving proper notice of the removal. Be careful out there.
David Swedelson is a founding and senior partner at Swedeslon & Gottlieb, and heads up the firm’s litigation team. David can be contacted via e-mail: firstname.lastname@example.org.