Limited parking is often a concern of community associations. While impermissibly parked vehicles may be in the form of improperly parking in an assigned parking space, obstructing sidewalks, blocking access to residents’ driveways, or otherwise impermissibly occupying much needed space, community associations should be aware of a few things before engaging in the self-help remedy of towing.
First, the association should ensure that it has specific authority in the governing documents (declaration of covenants and restrictions, bylaws, articles of incorporation, or rules and regulations) to tow. An amendment to the declaration, which typically requires at least a majority of ownership approval, is recommended in order to withstand challenge. A board rule may possibly be passed provided that authority to adopt the rule is set forth in the governing documents, however, such rules are judged by the more easily-defeated “reasonableness” standard. Accordingly, a declaration amendment is recommended whenever possible.
Second, should the authority be provided in the association’s governing documents to tow, the association must follow the provisions of Section 715.07 of the Florida Statutes. Section 715.07(2) provides as follows:
[t]he 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 … may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, under … [certain specified] … circumstances[.]
The statute defines a vehicle as anything that is mobile and has wheels (whether motorized or not) and a vessel as anything capable of being used as transportation on water. Also, the “owner or lessee of real property, or any person authorized by the owner or lessee” refers to the entity that owns or controls the property on which the vehicle or vessel is located. An association interested in towing should seek legal counsel to determine its ability to tow vehicles depending upon the location of said vehicle (for example, common property versus private property).
Section 715.07 requires that the association be in “strict compliance” with the notice and signage requirements as set forth in the statute. Put simply, it is not enough to cite to a passed amendment to the declaration or approved rule which would purport to allow towing – the association must provide notice pursuant to Chapter 715, which for example lists the minimum size of the font and actual size of the sign on Association property. Finally, an association should be aware that Section 715.07 may be supplemented with county or municipal ordinances which may require additional compliance. It is very important for the community association to be aware of the statutory requirements, because an improper towing may lead to civil liability (including payment of prevailing party attorney’s fees and court costs) for the association and possible criminal liability for the towing company.
In addition to towing, other options are available to community associations that wish to remedy parking issues within the community. Associations may fine and/or proceed with appropriate legal relief, subject to any mandatory pre-suit alternative dispute resolution requirements. Finally, community associations may attempt to enter into agreements with local law enforcement to enforce generally-applicable laws on community property. The association is strongly urged to contact counsel to discuss contemplated enforcement procedures in response to parking violations.