Carpark fines, towing and clamping
Find out if the landowner has the right to tow, clamp or fine you.
Code of conduct for wheel clamping
The parking industry recently developed a voluntary Code of Conduct for Wheel Clamping on Private Land that becomes effective on 1 October 2012. This Code sets out the minimum standards of what people can except from the parking enforcement industry. It includes the requirement for clear signage, details the situations when clamping can and cannot occur and includes a $200 cap on release fees. To date, five parking enforcement companies have agreed to be bound by the Code. They are: Comprise Group, Egmont Security, Tournament Parking, Valley Parking and Wilson Parking. These companies agree to refund consumers if they breach the Code and should a dispute arise, they agree it will be their responsibility to prove they have met their obligations under the Code.
Carpark fines, towing and clamping
Different laws apply depending if you park on public land, which incudes roads and council parking, or private land, which includes commercial carpark buildings and shop carparks.
Parking on the road or council carparks
On public land, the police and parking wardens have the authority under the law to fine or clamp.
Find out when you can be fined or towed on public land.
Parking in a commercial carpark buildings, shop carparks and other private land
There is no specific legislation that covers what a private landowner can do if you park unlawfully on their land. If you have paid for parking then the car park operator can include in the contract the right to tow, clamp or charge a fee.
Find out what a private land owner has to do to tow, clamp or charge a fee under contract law.
If you were parked on private land without permission then you are trespassing.
Find out what actions someone can take if you are parked on their land without permission.
Resolving common problems with carparks
- I’ve been charged an unreasonable amount for overstaying
- There wasn’t a clear sign explaining I would get towed or clamped or fined
- The landowner says they can use ‘Distress damage feasant’ to clamp or tow my car and I believe it was unreasonable
- How do I dispute an infringement notice, tow or release fees from public land?
- What happens if my vehicle was damaged while being towed?
- What if my car is towed or clamped unlawfully?
Any signs or information given to you by the operator before you park become part of your contract. By parking in the car park you are agreeing to the terms of the contract written on the sign.
Find out how to argue if the signs were not clear
If you stay too long, then under contract law a car park operator can only claim for damages. Damages are the actual and reasonable costs they incurred because you breached the contract. For example, the time you overstayed and the cost of getting the money back from you.
The car park operator may say that if you stay after the time you have paid for then you are trespassing.
If you park your car on private land such as a private car park, or a car park which is only for shoppers, or even if you have overstayed in a paid car park, you may be trespassing. The landowner can take civil action against you in Court for damages and/or an injunction to stop the trespass from continuing.
Many landowners will instead choose to clamp or tow your car. To do this landowners can say that you accepted the risk of being clamped or towed because there was clear signage or they rely on an old common law doctrine known as “distress damage feasant” to seize the car until you pay for damages.
Clear car park trespass signs
If there is a clear sign that says cars will be towed or clamped, there may be implied consent by the motorist that they risk being towed away if they do not meet the conditions. Implied consent means that your actions can be seen as an agreement.
Private land owners do not need to display warning signs that unlawfully parked vehicles will be towed or clamped. But a private landowner has stronger legal grounds to clamp or tow a vehicle on their land if the signs are clear.
If the landowner chooses not to display a warning sign, they run the risk of being unable to enforce payment of release fees.
If they can’t argue that there were clear signs they may argue that they have the right to clamp or tow under ‘distress damage feasant’.
Distress damage feasant
‘Distress damage feasant’ is a part of law which was originally developed to help people whose land was damaged by trespassing (straying) livestock. It gave the landowner the right to keep stray stock until the owner compensated them for the damage the animals caused.
It’s up to the Courts to decide whether 'distress damage feasant' applies to a car park situation and whether clamping or towing is justifiable.
If you aren’t planning to go to Court over this issue you at least have the Court’s guidelines that say to use 'distress damage feasant', among other things:
- the object must have caused the landowner to suffer some actual damage;
- any steps taken must be justifiable and reasonable given the nature and degree of the trespass;
- the vehicle owner can’t be present at any time while the vehicle is being immobilised or towed because there is a risk of confrontation between the parties which can lead to a breach of the peace;
The Police and parking wardens have the power to issue infringement notices for parking offences under transport legislation. They can also authorise vehicles to be towed if they believe on reasonable grounds that a vehicle on a road is:
- causing an obstruction; or
- its removal is in the interests of road safety or the convenience and interest of the public.
Examples where parking on a road may cause an obstruction include:
- yellow lines
- pedestrian crossing
- over a fire hydrants
- on a footpaths
- over a drive way or road entrance etc
The legal definition of a road is a wider than our ordinary use of the word, for example it includes beaches, bridges, ferries and other places the public have access to.
Local authorities may also issue a wide range of road bylaws.
They can prohibit or restrict parking on any road as long as they display certain signs. They may also fine and remove vehicles that breach parking bylaws.
What fees will I be charged for parking infringements? What if I am towed from public land?
The Transport Act caps the amount of fees you can be charged for parking offences.
The Transport (Towage Fees) Notice sets out the maximum amount you may be charged in respect of parking offences.
Most council websites have information about parking offences and local parking policies, including fees.
Got a problem with a car park?
Landowners have no legal basis for charging you a fine or penalty. Neither tort nor contract law allows them to punish you for breaking contractual terms or trespassing.
Landowners can only claim from you the expenses they reasonably incurred as a result of your contractual breach or trespass. A useful starting point in determining what is reasonable may be:
- Tow costs: compare the fee with how much it costs for a point to point tow of the same distance. However, remember that storage and having someone present to release the vehicle may add extra costs.
- Parking fees: to compare the fee with the amount you should have paid for the time you overstayed. However, remember the parking company will have incurred administrative costs in issuing tickets and recovering fines, these may add extra costs.
If the sign was unclear, the landowner or car park operator may not be able to claim you accepted the risk of being towed or clamped
If you have paid for parking then the Fair Trading Act will apply and if you are using the park for personal use, then the Consumer Guarantees Act will apply.
Fair Trading Act
The Fair Trading Act prohibits traders from engaging in misleading or deceptive conduct, and from making false or misleading statements.
If signs at the car park are false or misleading, such as if warning signs are either absent or not visible and the overall effect is misleading, then the Fair Trading Act may have been breached. You may be able to dispute payment of the infringement notice and/or tow or release fee.
It is also a breach of the Fair Trading Act if the car park operator makes false or misleading representations as to your legal rights. This could be in its terms and conditions, or advice to you.
You can claim damages from car park operators under the FTA in the Disputes Tribunal. You can also make a complaint to the Commerce Commission, which enforces the FTA.
Consumer Guarantees Act
The Consumer Guarantees Act provides a guarantee that services must be carried out using reasonable skill and care.
In the context of car park operators, this guarantee may require for example that clear instructions be provided about:
- operating hours
- fees and payment mechanism
- duration of stay
- parking perimeters e.g. reserved/unreserved parking
- how tickets must be displayed
- consequences of breaching conditions
It would also require that any parking policies are enforced using reasonable care and skill.
If you have suffered a loss as a result of a breach of the CGA, you can claim compensation from the car park operator for any reasonably foreseeable loss they suffered as a result (this is known as consequential loss) e.g. reimbursement for the clamp release fee or towing fee, storage costs, the cost of getting to the tow yard, any damages caused by towing the car and possibly stress or inconvenience.
The landowner says they can use ‘Distress damage feasant’ to clamp or tow my car and I believe it was unreasonable
Only the Court can decide whether ‘distress damage feasant’ applies to a car parking situation. NZ and UK Courts disagree on whether towing and immobilisation costs in themselves can be considered actual damage.
In a leading UK case, the judge said wheel clamping was analogous to “a self-inflicted wound”. This is because clamping continues rather than remedies the trespass of an unlawfully parked vehicle and any damage it is causing. The owner will generally be present at some point while their vehicle is immobilised, so there is a high risk of confrontation between the parties. For these reasons, private land owners may have difficulty justifying wheel clamping on the basis of distress damage feasant.
If you believe towing or clamping was unreasonable first try a written complaint and if that doesn’t work take you case to the Disputes Tribunal or Court.
Read the infringement notice carefully to see who it was issued by, why and pursuant to what authority. If you believe the infringement notice or release fee is unjustified, issued without authority, or is unreasonable, you may wish to make a complaint to the relevant agency. Read the information on the back of the ticket carefully as this will explain the process and any applicable timeframes for making a complaint.
The Consumer Guarantees Act 1993 (CGA) applies to the services Vehicle Recovery Services provide. Meaning they must use reasonable care and skill, ensure their services are fit for their particular purpose etc.
Under the CGA Vehicle Recovery Services have to pay compensation for any consequential loss that their faulty service causes you (such as scratches or other damage to your car.
Although you can claim compensation for loss caused by their careless service, the Carriage of Goods Act 1979 enables them, as a carrier of goods, to limit their liability. So the amount you can ask for will depend on the terms and conditions of their tow contract with you (the exception is intentional loss or damage).
Tow companies are also governed by the Land Transport Rule 81001 which says that tow truck operators must take "all reasonable precautions" to prevent loss from or damage to any vehicle being towed. If they do not comply with this section they can be fined by the Police.
If your car is damaged or property lost, you should make a written complaint to the tow company, explaining what happened, setting out the repair costs and the compensation you seek. Copy any complaint you make to the person that authorized the tow (e.g. the landowner, city council), the police and your insurance company.
Your insurance company may try to claim against the tow company's insurer. If you are not insured and the tow company refuses to assist, you file a claim for your loss in the Disputes Tribunal.
If a vehicle recovery service unlawfully tows or clamps your car, they may commit torts of conversion and detinue.
Tort is an unusual word. It describes a type of law that covers situations where one person causes harm to another person or their interests. Tort law is focused on compensating the person that suffered loss, not punishing the party that caused it.
The tort of conversion is where someone ‘intentionally’ (even if they honestly believe they have a right to) interferes with a person’s right to possess property without having the legal justification for doing so. For example, if someone unlawfully tows or clamps your car and intends to holds to hold it until they are paid release fees, they will be liable for torts of conversion and detinue (the wrongful detention of property).
This can be a tricky area of law so you may wish to seek advice from the Community Law Centre. You can also file a claim in the Disputes Tribunal.