Defending the Castle: How to Implement Tailored Parking Policies and Vet Vendors

Intruders and unauthorized “guests” constitute perhaps the most significant threat to apartment community safety and security, because they arrive without a landlord’s knowledge and screening.[1]  Fortunately, ensuring that only authorized people visit your apartment community is not out of your control.

Landlords can control who visits their property by implementing a tailored parking policy and selecting the right parking enforcement vendor.        Paragraph 21 of the TAA lease provides a solid basis for parking rules. In addition, landlords could tailor the rules to their specific property and needs.  For example, a landlord may require that all vehicles, even visitors, display a proper permit.  By controlling the issuance of permits, the landlord can better ensure that it knows and screens the people on its property.

When modifying parking rules during the lease term, landlords should: 1.) apply the rules to all tenants; 2.) properly deliver notice of the change to all tenants; and 3.) commence enforcing the new rules no earlier than 14 days after the date notice of the change was delivered to the tenants.[2]

Notice of the change can be delivered via: certified mail, return receipt requested; hand delivered to the tenant or any occupant over the age of 16 years at the tenant’s dwelling; facsimile to a number provided by the tenant; or taping the notice to the inside of the main entry door of the tenant’s dwelling.[3]  Unlike a notice to vacate, the notice of change cannot be posted on the outside of the main entry door under any circumstance.[4]

If the parking rules exist at the time the lease agreement is signed, then the landlord must provide the tenant with a copy of the parking rules before the lease is signed.[5]  Additionally, the parking rules must be: signed by the tenant; included in the lease; or included in a lease addendum, but only if the addendum is expressly referred to in the lease agreement.[6]  Select “Other” and type in “Parking Rules” on paragraph 42 of the TAA Lease, if using a parking addendum.  If the rules are contained in the lease or an addendum, the title must be either “Parking” or “Parking Rules” in capitalized, underlined, or bold print.[7]

Selecting a suitable parking enforcement vendor requires examination of three categories: 1) Insurance; 2) Sales Method; and 3) Legal Compliance.

First, both the towing company and the vehicle storage facility must have insurance.[8]  Vehicles can only be legally removed by a tow company that has insurance.[9]  Likewise, vehicles may only be stored at a facility that has insurance.[10]  Landlords are shielded from liability resulting from damages caused by a towing company or vehicle storage facility, if both the tow company and vehicle storage facility have insurance.[11]

Second, a parking enforcement vendor’s sales method should not include signing bonuses, gifts, free striping, free roadside assistance, or pro rata payments.[12]  Solely excluding the provision of required signage, tow companies cannot offer—and landlords cannot accept—“anything of value” in connection with the removal of a vehicle.[13]  Having a standing written agreement between the landlord and tow company is not only prudent, it is also required if the towing company patrols (i.e. not simply “on-call”).

Finally, the landlord should verify that: 1) the tow company possesses a valid license from the Texas Department of Licensing and Regulation; 2) the tow signs comply with Texas law; and 3) the tow company receives written verification of tow sign installation before towing.

Landlords should also inspect the tow signs to verify that they comply with sections 2308.301 through 2308.303 of the Texas Occupations Code.  If the landlord is not certain that the tow signs are compliant, then it should seek legal advice.  Finally, the tow company should always ask the landlord for written verification of sign installation prior to towing.[14]

Please note that this article is meant to inform; it neither constitutes legal advice, nor does it create an attorney-client relationship. We recommend you contact an attorney familiar with the Texas Property Code and Texas Occupations Code for your particular needs.

[1] E.g. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 547-548 (Tex. 1985).

[2] Tex. Prop. Code § 92.0131(d), (e).

[3] Tex. Prop. Code § 92.0131(d).

[4] Compare id; with Tex. Prop. Code § 24.005(f-1) (permitting delivery of NTV’s on the outside of the main entry door under very limited circumstances).

[5] Id at § 92.0131(b).

[6] Id; e.g. TAA Lease ¶ 42, “Other.”

[7] Id at § 92.0131(c).

[8] 16 Tex. Admin. Code §§ 85.400, 86.400.

[9] Tex. Occ. Code § 2308.255(c); 16 Tex. Admin. Code § 86.400.

[10] 16 Tex. Admin. Code § 85.400.

[11] Tex. Occ. Code § 2308.403(2).

[12] See also Tex. Att’y Gen. Op. JC-0554 (2002) (interpreting Tex. Transp. Code §§ 684.081 and 684.082 prior to their re-codification, without substantive change, in the Texas Occupations Code as §§ 2308.401 and .402); but see supra 6.

[13] Tex. Occ. Code §§ 2308.402(a), 2308.401(a) (prohibiting offer and acceptance respectively); 16 Tex. Admin. Code § 86.705(a) (excluding required signage from prohibition against offer and acceptance of “anything of value”).

[14] See Tex. Occ. Code 2308.255(a)(1).