How often do we hear the threat, “If you park there, we’ll tow you” repeated in certain private communities? The question remains, when can and should a board tow cars?
In terms of ability to tow, there is a significant difference between a towing provision contained in an association rule and one contained in the Declaration. When a court is asked to decide the validity of a towing provision enacted solely by Board rule, much greater scrutiny is applied since “so few” have decided the fate of “so many”. Indeed, the legal standard to be applied in these cases is one of “reasonableness”.
By contrast, when a towing provision is made part of an association’s Declaration, courts treat the reasonableness issue as having been resolved since the membership has weighed in and voted to make towing an option to enforce the parking restrictions. Thus, the safest route for a board to take when implementing a towing policy is to do so via amendment to the Declaration. This is not to say that towing provisions contained within Rules and Regulations are not enforceable; they are simply subject to greater scrutiny.
Once you get past the issue of can you tow, you have to ask whether you should be towing. Keep in mind that towing requires taking a resident’s or guest’s private property which tends to anger them and increases the likelihood of retaliatory lawsuits. The location from which the vehicle is towed also plays a role in this decision. Towing an abandoned or inoperable vehicle that is leaking oil onto the common area parking lot is a lot different than towing an unauthorized vehicle from an owner’s driveway.
Finally, Chapter 715 of the Florida Statutes governs the involuntary towing of vehicles. At a minimum, a board’s towing policy must include the following procedures:
• All current owners and residents must be notified of any recently passed rule and the association’s intent to tow unauthorized or improperly parked vehicles at the vehicle owner’s expense.
• The Board must designate, by resolution, a representative to coordinate and oversee the towing.
• The Board must utilize the services of a reputable towing business which strictly follows and adheres to the requirements set for in Chapter 715, F.S.
• The Board should contact the local municipality to see if there are any specific towing requirements which may supplement Chapter 715, F.S.
• The Board should arrange for the installation of all appropriate signs in conformity with the statute such as size, shape, height and contents.
I previously wrote about when to call your association attorney; implementing a towing program is one of those times given what is at stake and the fact that tempers are always escalated when towing is employed.
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