What happens when vehicles get clamped? What do I do if it happens to me?
Clamping is where devices are fitted to the wheels of a vehicle to prevent the car from being driven away. It is a common method used by car park companies when drivers breach the conditions of a private (commercial) car park by failing to pay the parking fee or by overstaying the time paid for.
If your car gets clamped, the car park company will require payment (a clamping fee) before they release your car back to you. You should find a sticker on the driver's door window that tells you:
- there is a clamp on your vehicle
- when and why your vehicle was clamped
- the contact details of the company
- the fee for removal of the clamp and how you can pay the fee.
If you know you shouldn't have parked in a space and you've been made aware e.g. by clear signage that you may be clamped as a result, then you will be required to pay the associated fine.
However, there are some circumstances where you might have a case for challenging the clamping fee, for example where the signage is unclear, illegible, or obscured, or if you believe the amount charged is excessive. You can make a written complaint to the company. You should support your complaint with as much evidence as possible e.g. photos of the signage.
If this doesn't get you anywhere, you can take your claim to the Disputes Tribunal.
Some of the major car parking companies have signed up to a voluntary code of conduct on wheel clamping. The code sets out the circumstances in which the companies may clamp a vehicle and people's rights if they believe the companies have breached the code.
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Who is legally allowed to have my vehicle towed?
If your car is unlawfully parked on public property, only a police officer or parking warden has the power to authorise towing. The tow operator has to follow certain rules, one of them being that a tow truck driver is only able to tow a vehicle if a "tow authority" has been completed.
A tow authority is a form which must include:
- the registration plate of the vehicle being moved,
- details of the person ordering the tow,
- the details of the tow operator and
- the reason why the vehicle is being towed.
If your car is parked on private property, the property owner can have it removed or immobilised. This includes when you park in a privately owned parking space without paying or for longer than you have paid for.
In general the owner of private car parking land (e.g. a commercial car park building or a shop car park) should have clear signage to say who can park there, for how long, the cost of parking, and what will happen if drivers are in breach of these rules when they park there.
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Can a tow truck operator break into my vehicle?
Yes, a tow truck operator may enter your vehicle if they have been authorised to by a parking warden or police officer. This is usually necessary to make sure the vehicle is safe to tow. i.e. releasing the hand break and putting the vehicle into neutral. They must do everything reasonable to make sure the vehicle is not damaged in the process.
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Can a tow truck operator take my car if I am in it?
Removal of your vehicle is not allowed if you have ‘possession and control’ of the vehicle. This means that a tow truck operator cannot legally tow your car if you are in it, and must release the car if it is already hooked up to the tow truck.
If the car is damaged, you can make a claim to the Disputes Tribunal.
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Can I be charged a towing fee if the car was not actually towed?
If you have unlawfully parked on public land and your car is towed away, the parking enforcement office will charge you an infringement fee which includes a towing fee. If you return to the car before it is towed away, you'll still get an infringement but the infringement fee may exclude the towing fee.
If you are on private land and you return while your car is about to be towed then your legal position will depend on whether you are in or near the car and whether the car has been hooked up to the tow truck.
They must release the car if you are in it (see the previous question), but if your car is already hooked up to the tow truck, then the tow operator may ask you to pay a call out or release fee to have your vehicle released. Consumer NZ says that you are not legally obliged to pay this fee. However, if you urgently need your car you may find it easier to just pay the fee and try to dispute it later at the Disputes Tribunal.
The release fee is generally much less that the towing fee.
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My car has been towed. How can I get it back?
If your car has been towed away, the towing company can hold your vehicle. You will need to make contact with your local council (if towed from public land) or with the towing company (if towed from private land) to find out where your vehicle is being held. To get your vehicle back you will need to show photo identification.
If your vehicle is towed from public land you may be able to get your vehicle back without paying straight away. You will be given an infringement notice that includes the parking infringement fine and the towing fee. In this case you have to pay the fine within the usual timeframe for an infringement.
If your vehicle is towed from private land, the towing fee and any storage fees must be paid in full before the vehicle is released.
The towing company will charge a storage fee, usually between $10-30 per day (if they are charging you much more than this, you could challenge the fee in the Disputes Tribunal).
If you don’t pay the towing fee, you will be sent a warning notice by the towing company. Your car can be held until the fee is paid (but cars retrieved from private property cannot be sold by the tow company without further legal action being taken).
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My car has been towed, and I don't have the money to pay for it. What can I do?
Normally a towing company will not release your car without full payment as the car is considered security against your towing debt while they have it. Some towing companies may negotiate terms of payment such as instalments, but this is up to them.
It is wise to pay the fee as soon as possible to avoid storage fees. You can take the company to the Disputes Tribunal if you believe the fee is unreasonable.