Police officers, city and county attorneys, private citizens and others frequently inquire about the circumstances under which the owner of private property may arrange for a vehicle parked on that property to be towed by a private towing company. The first place people generally look for an answer is G.S. 20-219.2, which seems logical, given that the statute is captioned “Removal of unauthorized vehicles from private lots.” G.S. 20-219.2, which applies only in specified cities and counties, prohibits a person who does not own or lease a private parking space from parking in such a space without permission of the owner or lessee if the parking lot meets certain criteria. The lot must be clearly designated as private by a sign no smaller than 24 inches by 24 inches that is prominently displayed at the entrance and that lists the name and telephone number of the towing and storage company. If the spaces are individually owned or leased, the parking lot must be clearly marked by signs setting forth the name of each individual lessee or owner. A vehicle parked in a privately owned parking space in violation of this section may be removed from that space upon the written request of the parking space owner or lessee to a place of storage. The registered owner of the vehicle is liable for removal and storage charges. G.S. 20-219.2(a1), (a2), and (a3) impose certain duties on a person who tows and stores a vehicle under this statute, including a requirement that the vehicle not be transported more than 25 miles for storage and that any person who tows or stores a vehicle under this statute inform the owner of his or her right to contest the lien for towing charges pursuant to G.S. 44A-4. Subsection (b) provides that “[a]ny person violating any of the provisions of this section shall be guilty of an infraction” punishable only by a fine of up to $100, rendering driver and tower alike subject to prosecution and punishment. Finally, G.S. 20-219.2(d) clarifies that the statute does not preempt the authority of cities and counties to enact ordinances regulating towing from private lots, as authorized by general law. See G.S. 153A-139 (permitting counties to adopt ordinances regulating parking in privately owned public vehicular areas upon the owner’s request and permitting a law enforcement officer to arrange for towing and safe storage); 160A-301(d) (permitting same for cities).
The limited scope of G.S. 20-219.2 is rather obvious. Most private parking lots don’t have individually owned or leased spaces. Those that do seldom contain signs setting forth the name of each individual lessee or owner. Despite their failure to meet the requirements of G.S. 20-219.2, private parking lots (particularly the ones close to urban centers or college campuses) frequently contain signs warning that vehicles parked by persons who are not patronizing the private business or who do not lease or own a space will be towed at the vehicle owner’s expense. I believe them, so I don’t park in such spots. But may the private property owner have my car towed if I do? And if my car is towed, may the tower require me to pay a fee for towing and storage before returning it?
The answer to the first question is yes. The answer to the second is unclear.
In Kirschbaum v. McLaurin Parking Co., 188 N.C. App. 782 (2008), the court of appeals explained that G.S. 20-219.2 “defines the State’s right to prosecute private citizens who trespass in private parking lots, but does not and cannot define the rights between two private citizens when one citizen trespasses upon the real property of the other.” Id. at 787. The plaintiff in Kirschbaum argued that the owner of a parking lot and its security agent trespassed against his property when they placed an immobilizing boot on his car, which the plaintiff parked on a weekday afternoon in a downtown Raleigh parking space leased by another. The parking lot was marked by signs stating that the lot could be used for restaurant parking (plaintiff’s purpose) only on evenings and weekends, but each individually leased space was not marked. The plaintiff pointed to the provisions of G.S. 20-219.2 and G.S. 20-107, which prohibits tampering with a vehicle without the consent of the owner, as support for his claim that an owner’s absolute right to the exclusive use and enjoyment of his or her private property does not extend to private parking lots. The trial court granted summary judgment for the defendants on this claim, and the court of appeals affirmed, explaining that while applying a boot to car amounted to interference with plaintiff’s property, the defendants “were privileged to attach the boot to protect their right to exclusive possession of [the parking lot].” Noting that “rightful possession cannot be vindicated by a bludgeon, but must be determined by a resort to legal proceedings,” id. at 788 (internal citations omitted), the court concluded that the defendants’ methods were reasonable as the security agent who applied the boot provided the plaintiff with a telephone number that he could have called to have the boot removed. The court further noted that the company provided an appeals process for people who contended they were improperly booted.
Thus, Kirschbaum holds that the owner of a private parking lot designated as such by signs may boot (and presumably tow) an impermissibly parked vehicle so long as the methods used are reasonable. The Kirschbaum court’s statement that G.S. 20-219.2 plays no role in determining whether the booting of the plaintiffs’ car was lawful implies that a parking lot owner can alleviate a tower of the duties in G.S. 20-219.2 by failing to adhere to the specific signage requirements of subsection (a) and thus removing the towing from the purview of the statute.
Because the plaintiff in Kirschbaum removed the boot from the wheel of his car himself, which damaged the wheel but saved him from paying the defendants to have it removed, Kirschbaum leaves unanswered the question of whether a towing company acting on behalf of a private property owner but outside the purview of G.S. 20-219.2 lawfully may require a vehicle owner to pay towing and storage fees before releasing the vehicle.
Persons who tow and store vehicles pursuant to G.S. 20-219.2 acquire a possessory lien for the reasonable charges of towing and storage, as do persons who tow and store vehicles pursuant to other statutory provisions. See G.S. 20-219.10(b). Thus, such persons may retain possession of the vehicle until the lien is paid, see G.S. 44A-3, and, if it is not paid, may sell the vehicle, see G.S. 44A-4. It is unclear whether a person who tows a vehicle at a property owner’s behest but outside the purview of any general statute would be deemed to acquire such a possessory lien. Perhaps in such cases the property owner is required to initially bear the cost of towing and storage, which it may then seek to recover from the vehicle’s owner in a civil action.
I’ve waxed on far too long already so I won’t address here other statutory procedures governing towing. If you are interested in future posts exploring towing pursuant to other statutory procedures or the applicability of the post-towing procedures in Article 7A of Chapter 20 (which don’t apply to the sort of private party towing discussed in this post), let me know.