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To Tow or Not to Tow?

Jason Pruett

One of the “hot-button” questions we receive
from HOAs is about their authority to tow vehicles that are improperly parked
in the subdivision. The primary question that the HOA needs to ask is whether
the vehicle they want to tow is parked in a Common Area (parking lot or private
street in most cases). If the answer to that question is yes, then as long as
the Declaration provides the HOA authority to control and maintain those common
areas, then the Board of Directors can establish reasonable rules for the use
of those common areas, which could include towing improperly parked
vehicles.  Note – When a vehicle is
improperly parked in community streets that are public right-of-ways
(and not Common Area), then the governance of those streets becomes the responsibility
of the local municipality.

Often, HOA governing documents will have
restrictions for parking on public streets, or the membership will want to
amend the governing documents to prevent parking on the public street. There is
a strong argument that if there is a clear restriction in the governing
documents that limits or prohibits parking on the public street then that
restriction is likely enforceable.

That said, there is no North Carolina case law indicating whether or not North Carolina courts would uphold a restriction permitting an association to tow from a public street.  As a result, our standing practice is to discourage boards from towing vehicles improperly parked on public streets even if there appears to be authority in the Declaration for three reasons:

  • There is no clear law on the point.  This leaves an association open to losing any legal challenge and possibly being liable for a ‘wrongful tow’. 
  • When a car is towed, the association exposes itself to additional liability.  The HOA could incur substantial storage fees, and potentially even damages awarded to the homeowner for a wrongful tow.
  • The association has the authority to enforce the parking restriction with the fining process, which the association completely controls from start to finish.

Essentially, while an Association’s Declaration may provide the authority to tow on public streets, the more prudent and likely more effective action of the Association is to follow their violation procedures in order to encourage homeowners to park their vehicles in the proper areas. Not only will this keep the association out of the “grey” area, it will treat improper parking just like every other violation.

For assistance with the interpreting a specific Declaration’s authority to govern a specific area of an association, contact one of Black, Slaughter & Black, P.A.’s attorneys in our Charlotte, Greensboro, Triangle or Coastal offices.

Author: Jason Pruett
Articles have been Reprinted with permission from Black, Slaughter, Black.

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