Scooter chained to fence by towie - chain removed, scootered home. Now I need advice

[ralph4alice]

Today I parked my scooter on an area of dirt, bounded by reserved carparking, the roadway (Kumutoto Lane), and a bridge pillar (the Everton Tce motorway overbridge). I came back around 6pm, to find my scooter moved over next to a fence, and chained by its front wheel. A note said I'd been clamped (ie: chained) because I was parked illegally, and gave the company name and number : Harbor City Tow and Salvage. it also stated I'd be liable for any damage caused to the clamp by attempted removal.

So I promptly arranged for a mate with a bolt cutter! Thus, my scooter made it home OK (I'll be buggered if I'm going to leave it there for some miscreant to possibly steal). Chain, along with padlock, was deposited on the ground by the fence (I was going to drop it off outside the towie's premises on the way home so that they couldn't argue any admin costs for coming to get the chain, but my mate suggested it might be viewed as stealing if I took it!).

My opinion is:

a) I was parked on a place that cannot possibly be considered a carpark: it isn't on a sealed surface ; it is on the 'non-road' side of the kerb

b) if where I parked was regarded as a footpath, it would be one in name only: it's just a random dirt area with stones etc - it isn't even a garden.

So, regarding the legality on clamping me -

I looked around the web for opinions about the legality of wheel clamping. Basically, if you're parked on a carpark on private land, it seems to be legal to wheel clamp - as long as there's adequate signage (but unreasonable terms or conditions - such as extortionate fees - are less likely to be enforced).
( ref http://www.mta.org.nz/n2466.html )

I also understand that it's illegal to park on a footpath, and councils issue tickets for this. So that's OK - I parked there since I thought "who in their right minds would regard this as a footpath...".

So:

- if the area is a footpath: why would a towie clamp me? It causes the problem to remain (ie: if I'm supposedly blocking foot traffic, why keep the problem in place?)

- would a towie have the power to clamp a vehicle on a footpath at all? Surely that could only be done by a WCC parking agent.

- if the area is a carpark, then things would rest on what a carpark is defined as, and whether that space could legally be argued to be a carpark.

- and if it's a carpark, is it on private land? If so, why is the sign at the entrance a WCC sign? The sign down the back says "private property", so what gives? (And was I actually parked on the property itself??)

Here's a map of the location:

http://g.co/maps/buq74

And attached are some pictures of the location, and my scooter parked there a couple of weeks earlier (on this day, the exact location was about one scooter length further back).

Would be extremely keen to hear peoples' opinions on this:
- was the towie wrong?
- what repercussions can be expected from the towie's chain being cut? At most, they wouldn't be able to charge more than the replacement cost of the chain, I reckon.

248315

248316

248317

Thanks heaps!
Ralph

[DMNTD]

Opinion, and only an opinion...great place to park as it allows others the benefit of a parking space (ie: I'd be inclined to do the same) without holding up pedestrians.
However I wouldn't be surprised that the towie would be in the "right" as it wasn't a designated parking spot therefore "illegal".
Sucks big time

[TOTO]

dont knwo if it would be legal or not, but i'd do exactly the same as you have done.

[Hitcher]

I doubt you've escaped without consequences. The tow firm probably has a record of your bike's rego. Once they've discovered that your bike has gone and somebody has thieved off with their chain and padlock, you'll probably get an infringement notice of some sort demanding reparations.

Your only defence is likely to hinge around whether the area on which you were parked was signposted to alert you or anybody else about the consequences of parking there. It was signposted. You're fucked.

Good luck with that.

[koba]

Whoever made the decision to chain up the scooter must be a real dickhead.

I think you are still fucked though.

[JustNick]

Meh it'll be a whole lot cheaper to replace the padlock or chain than to pay towing fees. Just ask for a receipt for actual and reasonable costs of replacing aforementioned items. :innocent:

[MaxCannon]

Towies and parking wardens are vermin.
If they send you a letter tell them to piss off.
If someone chained up my bike like that I'd do exactly the same as you did.

[steve_t]

Did you lock the chain to the fence so nobody else could steal the chain and lock? Oh, I just realised that you wouldn't be able to. They'll probably recover it and claim it was stolen anyway.

The tow company will have taken photos before acting. You might be in the crapper but your best bet is to find out who actually owns the land you were parked on. I also wonder if the sign says "you will be towed" if it's OK for them to chain it to a fence. They will probably try and sting you with a call out fee too

[GrayWolf]

Today I parked my scooter on an area of dirt, bounded by reserved carparking, the roadway (Kumutoto Lane), and a bridge pillar (the Everton Tce motorway overbridge). I came back around 6pm, to find my scooter moved over next to a fence, and chained by its front wheel. A note said I'd been clamped (ie: chained) because I was parked illegally, and gave the company name and number : Harbor City Tow and Salvage. it also stated I'd be liable for any damage caused to the clamp by attempted removal.

if the area is a footpath: why would a towie clamp me? It causes the problem to remain (ie: if I'm supposedly blocking foot traffic, why keep the problem in place?)

- would a towie have the power to clamp a vehicle on a footpath at all? Surely that could only be done by a WCC parking agent.

- if the area is a carpark, then things would rest on what a carpark is defined as, and whether that space could legally be argued to be a carpark.

- and if it's a carpark, is it on private land? If so, why is the sign at the entrance a WCC sign? The sign down the back says "private property", so what gives? (And was I actually parked on the property itself??)
Would be extremely keen to hear peoples' opinions on this:
- was the towie wrong?
- what repercussions can be expected from the towie's chain being cut? At most, they wouldn't be able to charge more than the replacement cost of the chain, I reckon.
Thanks heaps!
Ralph

Hi Ralph,
well as is anyone's it's only my opinion....
I think you'll find WCC give the towies the rights to tow vehicles from their car parks.. so I am going to guess the towie has thier permission. Private land as far as the road rules are concerned? I think car parks are classed as private land with public right of access if Council owned.

I agree with another comment, although you were on the 'waste ground' it IS on the carpark land, ergo the towie will have a legal right to tow you or clamp you.
Sadly some of the towies are simply assholes, some are a bit more intuative, as bikes are not usualy charged parking fees, and/or park on an area not obstructing anything.... guess you just lucked out with this one...
I think you will get charged the cost of the lock, and no doubt some exhorbitant fee for administration, lost revenue, time, etc, etc......

Hope not, but????

GW

[Quasievil]

I would find out what mandate they have in clamping your bike on this piece of property, who owns it and where is there authority to do this to your private property.
Tow truck drivers are NOT the law they are a common business they are not the police.
And was there any "no parking" signs or anything to suggest that it would be illegal for you to park there.

I would go heat seek on there arse, further I would take the initiative and get stuck into them, I wouldn't wait for them to come to me...........but I like a good fight against Nazi mutha fuckers !

[Quasievil]

Sorry Edit, I see the sign, but you are not in a reserved car park, you are to the side of it on a piece of dirt, you have not occupied a reserved car space, or hindered its access

I would be fighting like a fucker on that one !

[bikaholic]

You need to review a 'target' program screened not too long ago about a dude who removed a clamp from his car.

[DrunkenMistake]

I would be the spiteful cunt to break into the towies and clamp all their trucks.
But thats just me.

Sucks what happend, I would fight them on it

[LBD]

I came back around 6pm, to find my scooter moved over next to a fence, and chained by its front wheel.

Clamping is one thing but the bike was moved...is that allowed?

[Spearfish]

I would give them a phone call and ask...
Where is my scooter I need it for__________
The last time you had seen the scooter it was chained to a fence so where it it now?
Has it been stolen?
What are your rights regarding a stolen scooter considering they they interfered with its security?




Leave it a week or two then phone back and say you found it and the stress of having your scooter stolen and inconvenience you have suffered is roughly double the price of the parking fine so when can you expect a check in the mail.

[Usarka]

I hate to link to that arse shitting show target, but...... http://www.stuff.co.nz/entertainment/tv/4992816/Targeting-iffy-legal-rights-of-clampers

[Spearfish]

I hate to link to that arse shitting show target, but...... http://www.stuff.co.nz/entertainment/tv/4992816/Targeting-iffy-legal-rights-of-clampers

From the article

"In a case in which a clamped driver busted the clamp by driving his car backwards and forwards till it broke off, the judge decided that the heightened risk of civil disorder - because the clampee always gets to confront the clamper and vice versa - put clamping outside the ambit of the damage feasant concept."



My spell checker is trying to pheasant the feasant...........

I need more coffee

[davereid]

I came back around 6pm, to find my scooter moved over next to a fence, and chained by its front wheel.

Clamping is one thing but the bike was moved...is that allowed?

If you are "opted out" of the motor vehicle register they may not even be able to get your name and address - it will depend on what they allege happened.

Strictly speaking they will have to show that you caused them loss, thus its in the public good, or that you consented for NZTA to release your address.

If they do get it ask NZTA for a copy of their allegations, see if they are telling a porkie or two, and it keeps NZTA on their toes as they are not supposed to release info on the opted out. In fact even lay a formal complaint with the NZTA if they have released your data.

If you are opted out it also costs them $25 from memory to apply for your name and address. It may well end there. If you are not opted out, well you are fucked on that one as anyone can get your address.

Towing is supposed to be a "remedy" for loss incurred by your parking. Clamping is pretty marginal as its hard to show that extending the duration of the loss was beneficial to them.

They have a valid claim that you have damaged their property.

But they only have your word for the fact you did it. They can demonstrate that they moved your bike, and chained it up. They can't establish that you unchained it, or were even aware it had ever been chained unless you confirm it, so no need to lie, just don't offer the information.

Fight this all the way IMHO.

Just make it difficult the entire time for them. Take your time replying, and if there is an invoice of any kind, just dispute it and demand a small claims hearing.

This prevents them filing with Debt collectors, as the court must first establish the debt.

Even if it goes to small claims, they may or may not win, and its my best guess that they will let it go, as you have the bike, and they have the paperwork.

[oneofsix]

looking at your photo's the piece of land you were parked on could be the roadway. I'm guessing there is no 'boundry' between the road way and the carpark. Therefore were you parked on the road berm or a piece of waste carpark land. it would be hard for them to argue it was carpark so might be best for them to cut their loses after a bit of bluff.
:laugh: I like the idea of reporting your scooter stolen, not really a lie as it was stolen (back) by you and your mate.

[ralph4alice]

Thanks heaps for all the replies folks!

I stopped by Placemakers on the way to work this morning, to check out the price of a chain. If they wish to claim cost of replacement, at most they could claim the cost of the chain. It only lost 2 or 3 links, so they could still carry out their job effectively with that length (note there was heaps of spare chain).

Good thought about opting out from having my registration details released, I have just done that now. Hopefully they hadn't got around to looking me up yet :-) Of course, there's every chance they looked it up before close of business - but here's hoping they hadn't worked through the respective paperwork yet.

I also had a suggestion to contact Fair Go and Target. I guess the case would hinge on the general reasonableness of what the tow company did, and whether anybody suffered any loss or damage as a result of where I parked.

Oh - needless to say : I'm now parked in a proper motorbike park in town! Scooter road legal too of course. I am *not* the kind of person who goes looking for trouble...

[Murray]

Not taking the car parking area into account the closer side (roadway) has broken yellow lines. This indicates no-parking and possibly the reason you have been clamped/chained

[theseekerfinds]

gees some towies are scraping the bottom of the barrel.. I can't believe they chained your scoot'.. I would also suggest you take the issue further and also support the notion of doing it first before they get in and it can be seen as nothing more than a reactive dispute.. call the tv shows for sure as they love going these kinds of situations and the tow company would have to consider the negative publicity.. but be pro-active not wait for them to go you first..

I must find something better to do on my day off than troll KB reading posts I've been missing :yes:

[ralph4alice]

Looks like a very important point is whether the land is public or private property:

- "If your car is parked on public property, only a police officer or parking warden has the power to authorise towing."

- "If your car is parked on private property, the property owner can have it removed or immobilised."

So, if it's private property, then it looks like they had the right to do what they did. If it's public, I cannot see thus far where it states they have the right to immobilise it - at the very least, they'd have to show that their actions were authorised by a police officer or parking warden. It is probably possible to regard the moving of it a few meters as falling under the definition of "being towed" - but there is still the issue of whether their immobilising it is legally allowed.


Excerpts from Citizens Advice Bureau

http://www.cab.org.nz/vat/tt/pi/Pages/Commonparkingissues.aspx


"Who is legally allowed to remove my vehicle?

If your car is parked on public property, only a police officer or parking warden has the power to authorise towing. For the towing itself, under the Transport Services Licensing act, a tow truck driver or operator has authorisation to enter and remove your vehicle. If your vehicle is removed from public land, you can get it back at the cost of the towing fee (which you must pay within 28 days) plus the infringement fee.

If your car is parked on private property, the property owner can have it removed or immobilised."

and


"Can the council issue me with a towing fee if the car was not actually towed?

Yes. If you are on public land, the infringement fee is charged the minute the tow truck is called. If you are on private land and the car is not towed, then you do not have to pay."


Ummm... I think I can thank my lucky stars I wasn't actually towed - or clamped, since a clamp would be vastly harder to remove. Guess where I won't be parking ever again?

[Bald Eagle]

I still think the fact that they physically moved it in order to chain it to a fence,( thus putting it in an 'illegal' position) they have unlawfully interfered with your vehicle and should be boiled in oil.

[Smokin]

At least you know it's ok to park by the fence next time :woohoo:

[ralph4alice]

... and doubt I will : the prevailing view of folk I speak to, is that the towies may well have been in the wrong, and were just trying it on to see if they could score an easy couple of hundred $$$.

If I find out the land is publicly-owned and not subject to the redresses available to a private property owner for supposed losses suffered by a vehicle being on that land, I intend to write the tow company asking why I was chained to the fence, and ask them to explain why they illegally interfered with my scooter.

If they were demanding money from me whilst knowing they were in the wrong but claiming to be right, this amounts to obtaining by deception. This is illegal under section 240 of the Crimes Amendment Act 2003 No 39.

*If* the land is public property, they have in my opinion breached (1) (a) and one of (2) (a) - either (i) or (ii) - or (2) (c).


does the towie has an intent to obtain money? Of course they do! They left a card stating the number to phone for removal - and it's plain as day they're not going to do that for free.
does the towie know that it's public property? They definitely should! If they do, they know that they are making a false claim - breaching (2) (a); if not, they have breached (2) (a) (ii) because they should know every detail of what they're doing before they interfere with someone's property.
are they guilty of deception? I think so: they are making a false statement (ie: that I'm "illegally" parked); they've breached section (1) (a) as they have "obtained control over" my property.


In my opinion, they would breach
From Crimes Amendment Act 2003 No 39, here: http://www.legislation.govt.nz/act/public/2003/0039/latest/DLM200200.html


"Obtaining by deception or causing loss by deception



“(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—


“(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

“(b) in incurring any debt or liability, obtains credit; or

“(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

“(d) causes loss to any other person.

“(2) In this section, deception means—


“(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—


“(i) knows that it is false in a material particular; or

“(ii) is reckless as to whether it is false in a material particular; or

“(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

“(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.




What would the potential punishment be?



(c) if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500, to imprisonment for a term not exceeding 3 months.

:Police:

[Renegade]

fun shit like this never happens to me, shame really because i to enjoy a good scrap.

I reckon youre sweet, you werent parked in a reserved car park so there was no loss to WCC nor was any person denied access to a park because of your scooter.

As for the chain, make them prove it was you that cut it, if they try to make you pay for it put in a counter claim for damage to the wheel rim when the ran the chain through.

[Indiana_Jones]

If there was no CCTV around, as renegade says, tell 'em to prove it.

Just say you got on your scooter and rode off, didn't see any chain or note.....

-Indy

[bsasuper]

This was on target a few months back, they can not wheel clamp or chain a vechicle.They suggested doing what you did and cut the chain/clamp off.If they try sending you a bill just write back saying its illegal that they moved and clamped your bike.

[Parlane]

This was on target a few months back, they can not wheel clamp or chain a vechicle.They suggested doing what you did and cut the chain/clamp off.If they try sending you a bill just write back saying its illegal that they moved and clamped your bike.

Target DID say that, and then the fair go guy get pissed off and went on TV to tell people that it wasn't fact. Target was mostly right. But if it is sign posted that your vehicle will be clamped, then it is ok to clamp it. But if it doesn't say it. Then it is illegal and you have a right to remove the device.

In this case only towing is mentioned. So technically he should be within his legal right to remove the chain.

If I was the guy who chained it up though... I would say that I did tow it, and then chained it on private property. And then the OP went on to the private property and stole it after breaking lock down measures lol.

[Banditbandit]

I'd argue "custom and practice" and send them heaps of photos of bike and scooters parked in similar places ...

[imdying]

Just do nothing. When they send you notices, ignore them. If they get as far as the Disputes Tribunal, all you need to do is convince the adjudicator that you did nothing wrong (with picture etc). The adjudicator is not a judge and awards based on what they think is most appropriate, so don't even worry about the pure legal definitions. Make it hard for them and, for two links in a chain, they might not find it worth their while.