Have you ever wondered about the laws regarding security or parking enforcement putting a “boot” on the wheel of a vehicle to prevent it from moving? By placing a boot or wheel clamp on a vehicle the person placing it there is essentially detaining the vehicle.
The most common place to see the wheel clamp used for parking enforcement is by local government, and it is usually used in an attempt to recover fine money when someone owes a significant amount to the authorities. Since it is official government sanctioned authority, most people don’t question it.
However, recently the wheel clamp has made an appearance on private property. It’s actually a very effective tool for landowners and private parking enforcement/security to control parking, mitigating violations, and recover private parking fees. I will cover that in a coming post.
I have personally been involved in developing some of the first third-party private parking enforcement services that use the wheel clamp extensively. City parking enforcement takes their share of verbal abuse when clamping, so you can imagine that when a private security guard does it, there tends to be even more “questions” and comments from the violators and even on-lookers.
So that leads me to today’s post. This particular guide applies to Canada but is relevant in other Commonwealth countries as well. I will be providing some guides for the various U.S. States in the future as well. Remember, you should always check with your own lawyers to make sure you are above board before buying a wheel clamp and immobilizing the vehicle. Okay, that disclaimer aside here is some background on the common law in Canada that applies to this practice:
The Laws that now apply to the practice of wheel immobilization of an illegally parked car, have long been established under common property law as set out in the original British North America Act of 1867, and earlier British Laws upon which our entire basic structure of Law in Canada and other commonwealth countries is based. The BNA ACT of 1867, comprises a major part of the Constitution of Canada. The Act entails the original creation of a federal dominion and sets the framework for much of the operation of the government of Canada including its federal structure, the House of Commons, the Senate the Justice System, and Taxation System. In 1982 the act was renamed the Constitution Act, 1867.
Relevant Legal Principles
“Trespass Law” – When considering Private Property, the law of trespass holds influence in respect to unauthorized parking suffered by the landowner. Anyone choosing to park their vehicle on private property without authorization or consent from the legal landowner is considered to be trespassing for any period while their vehicle is parked. When trespass can be proved, any landowner is entitled to recover nominal damages whether or not actual loss has occurred. If the act of unauthorized parking has resulted in loss or damage for the landowner, then they are entitled to compensation for that loss.
“Distress damage feasant” – an old, medieval, self-help remedy, adapted to modern conditions. Put in simple English, if a landowner found the property of another causing damage on his land he could seize the offending property and withhold it from its owner until adequate compensation had been tendered for the damage done. Recent case law states that damage should be presumed since land is a valuable commodity, car parking spaces are at a premium, and a party entitled to use a private car park suffered loss if he was deprived of that use by a trespasser. The law gives property owners and individuals the right to self-help.
“Violenti-non-fit-injuria” – (Latin: “to a willing person, no injury is done” or “no injury is done to a person who consents.”) is a common law doctrine, which means that if someone willingly places himself or herself in a position where hard might result, knowing that some degree of harm might result, they cannot then sue if harm actually results. Signs are posted on the property, if you park your vehicle on the property without consent, you are a trespasser.
“Contractual Law” – Law of contract – A person can enter into a contract either by expressly agreeing to do so or by acting in such a way that he/she can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of parking in a particular area, by implication the motorist enters into a contract with the parking enforcement company (or the landowner) and accepts the terms set out in the notice by proceeding to park. A recent decision by the court of appeal has confirmed that provided that adequate notice of the consequences of illegal parking is given, the person parking accepts the terms set out in the notice and therefore consents to the risks and consequences. It is enough to say that by voluntarily accepting the risk that a person’s car might be clamped, and then they illegally park their vehicle on private property, they also accept the risk that their car would remain clamped until they pay the reasonable cost of clamping and de-clamping. They consented not only to the act of clamping the car but also to the action of detaining the car until payment is received.
So, you might be able to tell that the key to being able to immobilize vehicles on private property is having the right signage. You are always better off going overboard on signage so there is no doubt that these principles apply.
Have you ever used a wheel clamp? If you have I am sure you must have a story or two to tell, so tell it in our comments section below…just don’t use real names of people or places. Do you have questions about parking enforcement? Post them below, I will be glad to answer or find the answers you need. And don’t forget to sign up for our email list. I am getting ready to start sending out some regular goodies, tips, and other fun and useful stuff.
Oh, and if you want these legal principles in a nice easy to print handout that you can even give to parking violators, just contact us through our contact page and tell me you want the “booting handout” and I will email it to you.