Condo Media - October 2019 - 29

Detail Essential
IT'S 5 A.M. on the morning after a snowstorm, and an
illegally parked car, whose owner you can't find, is blocking
the plow. Who are you going to call to tow the car?
It should be a towing company with whom the
association has an established relationship. You can't
expect a random company that doesn't know your
community to prioritize your request, and you don't
want a company you don't know and haven't properly
vetted to be towing owner' cars.
In addition to selecting a reputable company,
you also want to negotiate a written agreement with it.
"The agreement doesn't have to be long or
complicated," William Johnson, president and CEO
of Hampshire Towing in South Hadley, Mass., says.
But it should cover essential details, among them:
The association representatives authorized to
order a tow.
The information the association must provide to
the tow truck driver identifying the car to be towed.
The fee the company will charge owners whose
cars are towed.
Where cars will be towed.
Who (the association or the tow company) is required
to notify the police department before a car is towed.
The point of no return for a tow-when the towing
fee is owed even if an owner arrives before the car is
removed. The Massachusetts statute says tow drivers
have the "discretion" to charge half the towing fee
if owners arrive "before the towing is completed."
But that is an option, not a requirement. Johnson's
policy is stricter: "We charge for the service. If we're
on scene and backed up to the vehicle, we have a
lien on it," and the owner must pay the full fee
before the tow driver will release the car.
LIABILITY CONCERNS
Indemnification is another issue the association's
agreement with a tow company should address.
The association wants to be indemnified from liability
if the tow company damages a car or fails to comply
with state or local towing requirements. But there is
no indemnification for claims resulting from erroneously
towing a car, Johnson points out. Both the association
and the towing company would face potential liability
for towing the wrong car or for towing a car that
was not parked illegally, which is why both parties
have a strong interest in avoiding these errors.
That's why associations should tightly control the
towing process and why towing companies want
them to.

in Towing
Agreements

The most effective control comes from allowing only
a limited number of designated individuals to initiate a
tow request. Richard Brooks, a partner in Marcus, Errico,
Emmer & Brooks, suggests that this list include the
association manager, and one or two board members,
to ensure that someone authorized to request a tow is
available when needed.
Some associations prefer to have owners affected
directly by an illegally parked car request the tow, but
no one we interviewed for this article thought that
was a good idea. "You want the manager to control
this process," Brooks says. "You don't want to have
retribution towing" ordered by owners who don't like
each other.
Ellen Shapiro, a partner in Goodman, Shapiro
& Lombardi, has philosophical as well as practical
objections to allowing owners to make the towing call:
"You're asking owners to do what should be a board
member's job," she notes. "If board members aren't
willing to do the hard things, they shouldn't serve on
the board." Besides, Shapiro adds, "I don't think tow
companies want to take calls from unit owners."
"We don't want the wild west out there,"
Johnson agrees.
WHO'S CALLING?
What tow companies do want, Johnson says, is to be
certain that tow requests are authorized. His company
uses the last four digits of the cell phone numbers of
authorized association representatives to verify their
identity, "so we know we're talking to the right person."
That's one of the details he includes in agreements with
condominium associations. He also wants the agreement
to specify the information individuals requesting a tow
must provide: At a minimum, the make and color of the
car, the plate number, and where it's located. "We don't
need every detail," Johnson says, just enough information
to ensure the driver doesn't tow the wrong car.
Some associations authorize the tow company to tow
illegally parked cars on their own initiative-in effect,
enlisting tow drivers to help enforce the community's
parking rules-but no one we interviewed for this article
thought that was a good idea. The primary concern: The
arrangement creates an incentive for drivers to tow, when
the best practice for condominium associations, most
industry executives agree, is to use towing as a last resort.
Jared McNabb, CMCA, PCAM, general manager at
the Brook House Condominium Trust, says he "rarely
encourages" tow-at-will arrangements with tow
companies. "There's a lot of room for interpretation"
in the enforcement of parking rules he notes, "and
those interpretations should come from board members,
not from tow truck drivers."
October 2019 CONDOMEDIA

29
Condo Media - October 2019

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