It has been quite some time since this Blog explored an associations’ authority to tow vehicles within their communities (prior blog article can be viewed here). Considering towing is a high-stress situation for most boards and the sheer number of questions we receive related to towing, we thought it would be useful to revisit a few of the basics of this issue.
Review the Governing Documents.
We may sound like a broken record on this point, but like our recommendations for analyzing most association issues, the first thing a board should do when considering towing a vehicle is review its association’s governing documents.
An association’s authority to tow vehicles may be explicit in the CC&Rs, the CC&Rs may defer to the rules, or the CC&Rs may be silent on towing. When CC&Rs mention towing and then defer to the rules (or, even where the CC&Rs are explicit), the rules also must be consulted for specific procedures or other prerequisites to towing. When CC&Rs are silent on towing, there may be general powers that would allow an association to create rules regarding towing, but a board should seek legal advice to help with this determination.
In short, carefully review what the association’s documents say (or do not say) about towing. With few exceptions, an association will need to follow its governing documents as well as all applicable laws.
Location - Public or Private Property.
In addition to reviewing the governing documents, a board needs to determine where the vehicle will be towed from—public streets or association private streets or other common areas?
a. Public Streets
Regardless of what the governing documents might provide, an association (probably) cannot tow vehicles from public streets or other public areas within the association (such as city-owned parks). Enforcement (including towing) on public streets is typically the domain of the local authorities, like the police. While there are arguments that an association may enforce private parking covenants against its members for their vehicles parked on public streets inside the association, the case law is ambiguous in this area and our recommendation is to always consult legal counsel before doing so.
b. Private Streets.
A vehicle improperly parked or located on private property, such as private streets or common areas, may be removed through a process called private impoundment. Chapter 46.55 RCW is the primary Washington statute concerning Towing and Impoundment. A vehicle may be removed immediately if the property is properly posted with parking restrictions and towing warnings (or if it is parked on private residential property, which is defined by the statute as property with four or fewer units). Again, even though the law may allow immediate removal of vehicles from private roads, an association’s procedures may require advance notice, fines or other prerequisites.
Towing from the association’s private streets--typically, this means streets that were dedicated to the association to be private, or designated as common areas in the plat or CC&Rs (although the public may access them to drive to members’ homes, for example)--is only allowed if proper signage has been posted. As provided in our prior blog post, signage prohibiting parking on nonresidential property must meet several requirements. A sign must be posted near each entrance and on the premises in a clearly conspicuous and visible location. The signs must state the times at which an unauthorized vehicle may be impounded and must also list the name, telephone number, and address of the towing company where the vehicle may be redeemed. An association should also clearly mark no parking areas. Requirements for towing authorization with a licensed tow company are discussed in the prior post.
Alternatives to Towing.
Towing a vehicle not only removes an improperly parked vehicle, it can deter future parking violations. However, if towing is not allowed or is otherwise impractical, or, if a board is otherwise uncomfortable with towing a vehicle, there are alternatives. Levying fines according to a previously adopted fine schedule is one way to enforce violations. If the fine is high enough, and enforcement consistent enough, fines can be an effective way to reduce parking violations.
Finally, this blog post does not address other items improperly parked or kept on owners’ lots, such as RVs, boats or junk vehicles. Stay tuned for information regarding that topic.
Remember, the above is a general discussion and not legal advice. Please call Barker Martin if you would like to discuss your association’s particular situation.