Ask Phoebe: What the law says about parking off the street

Private owners can use several legal rules to have you clamped.

What laws apply to vehicles on private roads, in free public car parks (many of which are privately owned), driveways and parking buildings? Do the full transport laws apply or are there exceptions and where do we find out what they are and where they apply?
John Marcon, Milford.

The parking team at Auckland Transport has kindly provided a very full answer:

If you refer to the link tinyurl.com/d8a7fom, it provides information in relation to parking in commercial car park buildings, shop car parks and other private land.

As you will see there is no specific legislation that covers what a private landowner can do if you park unlawfully on their land. However a private landowner can rely on contract law and trespass law in order to fine, tow or clamp vehicles.

Fining, towing or clamping under contract law

Any signs or information given to you by the operator before you park becomes part of your contract. By parking in the car park you are agreeing to the terms of the contract written on the sign. If you stay too long, then under contract law a car park operator can claim only for damages. Damages are the actual and reasonable costs they incurred because you breached the contract. For example, this would include the time you overstayed and the cost of getting the money back from you. The car park operator may say that, if you stay after the time you have paid for, then you are trespassing. If you were parked on private land without permission then you are trespassing.

Fining, towing or clamping under trespass law

If you park your car on private land such as a private car park, or a car park which is for shoppers only, or even if you have overstayed in a paid car park, you may be trespassing. The landowner can take civil action against you in court for damages and/or an injunction to stop the trespass from continuing. Many landowners will instead choose to clamp or tow your car. To do this landowners can say that you accepted the risk of being clamped or towed because there was clear signage or they rely on an old common law doctrine known as "distress damage feasant" to seize the car until you pay for damages.

If there is a clear sign that says cars will be towed or clamped, there may be implied consent by the motorist that they risk being towed away if they do not meet the conditions. Implied consent means that your actions can be seen as an agreement. Private landowners do not need to display warning signs that unlawfully parked vehicles will be towed or clamped. But a private landowner has stronger legal grounds to clamp or tow a vehicle on their land if the signs are clear. If the landowner chooses not to display a warning sign, they run the risk of being unable to enforce payment of release fees.

• This is the last Ask Phoebe column this year. I would like to thank readers and writers for their support during the year, and also the government and local bodies who provided us with their time, patience and knowledge. The column will resume on January 22.