Florida Tow Liens Overview
In a previous article we discussed Fla. Stat. §715.07, which governs the requirements for a non-consensual tow of a car from private property in Florida.
This article discusses Fla. Stat. § 713.78, which grants a towing-storage operator (tow company) a lien on a towed vehicle for reasonable towing and storage charges incurred, if the tow was done at the request of the property owner from which the vehicle was towed (in other words, a non-consensual tow, which must comply with Fla. Stat. §715.07), at the request of law enforcement, or at the request of the vehicle’s owner. Fla. Stat. § 713.78(2)(a)–(d).
Fla. Stat. § 713.78 also sets forth the procedure by which a towing-storage operator can enforce a lien by public sale, if vehicle’s owner does not recover their vehicle within the time set by law. Fla. Stat. § 713.78(4). If the car is more than 3 years old, it can be sold by the tow company if the car remains unclaimed after 35 days. Fla. Stat. § 713.78(6). If the car is less than 3 years old, it can be sold by the tow company if the car remains unclaimed after 50 days. Id.
Notice of Lien
Fla. Stat. § 713.78 provides that a person “who claims a lien for recovery, towing, or storage services” must give notice to the registered owner of the vehicle, the insurance company insuring the vehicle, and to all persons claiming a lien against the vehicle. Fla. Stat. § 713.78(4)(a). The tow company is required to check public records to obtain this information. Id.
The notice must be sent to these potential stakeholders “within 7 business days after the date of storage of the vehicle[.]”Fla. Stat. § 713.78(4)(c) (emphasis added). The notice of lien may also include the date on which the vehicle will be sold at auction. Id. If it does, the notice must also be sent 30 days or more before the sale of the vehicle. Id. In addition, the notice of lien must be sent by certified mail and disclose the following:
- 1. The last 8 digits of the vehicle’s VIN number … clearly printed in the delivery address box and on the outside of the envelope sent to the registered owner and all other persons claiming an interest therein or lien thereon.
- 2. The name, physical address, and telephone number of the business where the towing and storage occurred, which must also appear on the outside of the envelope sent to the registered owner and all other persons claiming an interest in or lien on the vehicle.
- 3. The fact of possession of the vehicle.
- 4. The name of the person or entity that authorized the tow company to take possession of the vehicle.
- 5. That a lien is claimed.
- 6. That charges have accrued and include an itemized statement of the amount thereof.
- 7. That the lien is subject to enforcement under law and that the owner or lienholder, if any, has the right to a hearing.
- 8. That any vehicle that remains unclaimed, or for which the charges for recovery, towing, or storage services remain unpaid, may be sold free of all prior liens 35 days after the vehicle is stored by the tow company if the vehicle or vessel is more than 3 years of age or 50 days after the vehicle is stored by the tow company if the vehicle or vessel is 3 years of age or less.
- 9. The address where the vehicle is physically located.
Fla. Stat. § 713.78(4)(c)(1)–(9) (emphasis added). If the tow company’s attempts to locate the name and address of the owner prove unsuccessful, the towing-storage operator shall, after 7 business days after the initial tow or storage, notify the public agency of jurisdiction where the vehicle is stored in writing by certified mail or acknowledged hand delivery. Fla. Stat. § 713.78(4)(e).
Notice of Sale and Auction Requirements
As noted above, the tow company may include the sale date in the notice of lien. Fla. Stat. § 713.78(4)(c). However, if the date of the sale was not included in the notice of lien, the towing-storage operator must provide notice of the sale to the car’s owner and lienholders by certified mail at least 15 days before the date of the sale. Fla. Stat. § 713.78(6). Public notice of the time and place of sale is also required in a newspaper of general circulation, at least 10 days before the sale, in the county in which the sale is to be held. Id. The sale must be open to the public and the sale must be for cash. Id. If the name and address of the registered owner cannot be ascertained after diligent search and inquiry, notice of the sale is not required. Id.
Tow Companies Must Make Good Faith Efforts to Comply with the Notice Requirement
In Ford Motor Credit Co. v. Sw. Transp., Inc., 668 So. 2d 1068 (Fla. 3d DCA 1996), Ford made an automobile loan for the purchase of a Mercury Cougar. Ford’s lien was recorded on the face of the Florida title. Id. at 1069. The owners were killed when the vehicle crashed and the police requested Southwest Transport to tow and store the car. Id. The lender received no notification from the towing company that the towing company was holding the car. Id.
Ford later discovered that the owners of the car were deceased and that the car had been held by the towing company for a considerable period of time. Ford Motor Credit Co., 668 So. 2d at 1069. Southwest Transport advised Ford that it would not release the vehicle without payment of towing and storage charges which amounted to $1,491.00. Id. Ford objected to the storage charges on the ground that it had not received the notice required by Fla. Stat. § 713.78. Id. Ford filed a lawsuit to recover the vehicle. Id.The trial court ruled that the towing company had a lien on the car for its towing and storage charges pursuant to Fla. Stat. § 713.78, and that the towing company was entitled to retain possession of the vehicle until the charges were paid.” Id.
Ford appealed the judgment. Ford Motor Credit Co., 668 So. 2d at 1069. “In this case the towing company sent the statutory notice to the lender at the lender’s address as shown on the motor vehicle title.” Id. “The certified letter was returned to the towing company undelivered, with the notation that the lender’s forwarding order had expired.” Id. “The towing company took no further steps to give notice to the lender.” Id. “Although the lender’s current address and telephone number are shown in the local telephone book, the towing company did not make any effort to call the lender or to remail the statutory notice to the current address.” Id.
“Additionally, during this very same time interval, the towing company had towed in other vehicles where this lender was the lienholder of record, and the towing company sent the statutory notice to the correct current address.” Ford Motor Credit Co., 668 So. 2d at 1069. “In other words, the towing company’s current records revealed the current address for the lender, but the towing company did not look in its own records.” Id.
However, Fla. Stat. §713.78(8) provides that “[f]ailure to make good faith best efforts to comply with the notice requirements of this section shall preclude the imposition of any storage charges against such vehicle.” Ford Motor Credit Co., 668 So. 2d at 1069. “Here the towing company did not use any effort, much less best efforts, to give actual notice to the lender once the original mailing had been returned undelivered.” Id. “The towing company could have readily given notice to the lender either by looking in the local telephone book, or by looking in its own records.” Id. “Since the towing company did not use good faith best efforts to comply with the statute, the towing company must forfeit the storage charges.” Id.
“Under section 713.78, the same rules apply to the ordinary citizen who owns a car, as well as to the lender who has a lien recorded on the face of the title.” Ford Motor Credit Co., 668 So. 2d at 1070. “The statute grants very substantial powers to towing companies.” Id. “So long as the towing company complies with the notification requirements of the statute, the towing company is entitled to impose storage charges and to have a lien on the vehicle until such time as the charges are paid.” Id. “As the facts of the present case demonstrate, storage charges can accumulate very rapidly, to the point that in some cases, ordinary citizens would be unable to pay them.” Id. “Further, if the charges are not paid, then the statute provides a procedure under which the vehicle can be sold.” Id.
“Because the statute provides a procedure whereby the citizen or lender may be required to pay very substantial charges in order to retrieve the vehicle, or may lose the vehicle entirely, the statute requires the towing company to make good faith best efforts to give notice to the owner and lienholder promptly after the vehicle is towed … as well as notice of any sale.” Ford Motor Credit Co., 668 So. 2d at 1070–71. “The fact that the address on the title may be out of date does not, in our view, relieve the towing company of the obligation to use good faith best efforts to give actual notice.” Id. at 1071.
Remedies for Failure to Comply with the Tow Lien Requirements
A vehicle owner may file a lawsuit to determine whether her or his property was wrongfully taken or withheld within 10 days after the time she or he has knowledge of the location of the vehicle. Fla. Stat. § 713.78(5)(a). The 10 day requirement has not been strictly enforced by courts but suit must be filed before vehicle has been sold. See Ford Motor Credit Co. v. Sw. Transp., Inc., 668 So. 2d 1068, 1071 (Fla. 3d DCA 1996) (“The trial court also faulted the lender for not filing its complaint within ten days of learning of the location of the vehicle. … [W]e do not consider the ten-day provision to be jurisdictional. In this case there is no showing of any prejudice to the towing company because the lender’s suit was filed sixteen days, instead of ten days, after the lender learned of the location of the vehicle.”).
Additionally, at any time before the sale of the vehicle, an owner may have her or his vehicle released upon posting with the court a cash bond equal to the amount of the charges for towing or storage and lot rental amount to ensure the payment of such charges in the event she or he does not prevail. Fla. Stat. § 713.78(5)(b). Upon the posting of the bond, the clerk of the court shall issue a certificate notifying the tow company of the posting of the bond and directing the tow company to release the vehicle. Fla. Stat. § 713.78(5)(b). At the time of such release, after reasonable inspection, the vehicle owner shall give a receipt to the towing-storage company reciting any claims she or he has for loss or damage to the car or its contents. Id.
Alternatively, the vehicle owner may file a lawsuit after the vehicle has been sold by the tow company. Fla. Stat. § 713.78(6). However, a lawsuit after the sale of the car is limited to money damages but cannot be used to force return of the sold car. RSC Corp. v. Hertz Vehicles, LLC, 90 So. 3d 358, 364 (Fla. 5th DCA 2012). In either event, the court may award damages, attorney’s fees, and costs in favor of the prevailing party. Fla. Stat. § 713.78(5)(c); Fla. Stat. § 713.78(6).
Tow Companies Must Strictly Follow Fla. Stat. § 713.78 in Order to Assert a Valid Lien
In Dowell v. State Farm Mut. Auto. Ins. Co., 269 So. 3d 662, 663 (Fla. 1st DCA 2019), Dowell towed a disabled 2011 Jeep Compass from a crash scene to his towing business at the request of law enforcement. After the Jeep went unclaimed for almost two weeks, Dowell sent a “Notice of Lien and Proposed Sale of Vehicle, Mobile Home or Vessel” to the Jeep’s owner. Id. “The notice informed the Jeep owner that Dowell was in possession of the vehicle and claimed a lien against it for the following charges: $100 towing fee, $35 administrative fee, $300 lien filing fee, and $288.20 in storage fees, which would continue to accumulate at $21.30 per day.” Id.
“Among other disclosures, the notice stated that the lien was subject to enforcement pursuant to … [Fla. Stat. §] 713.78 … and that the Jeep would be sold at a public sale on April 21, 2014, at 10:00 a.m. unless it was redeemed from Dowell by payment ‘as allowed by law.’” Dowell, 269 So. 3d at 663. “The sale proceeded as planned and Dowell was the sole bidder.” Id. “Afterward, Dowell obtained a certificate of title to the Jeep issued by the State of Florida.” Id. “State Farm, the Jeep’s insurer, subsequently applied for and received a ‘salvage vehicle’ title certificate ….” Id.
Dowell filed a lawsuit against State Farm, asserting that its “registration of the Jeep as a salvage vehicle destroyed essentially all its marketable value as a used automobile.” Dowell, 269 So. 3d at 663. “State Farm moved for summary judgment, arguing that the public sale of the Jeep was not valid because Dowell failed to comply with … [Fla. Stat. §] 713.78 … the statute on which Dowell’s claim of lien and ownership of the vehicle is based.” Id. “The trial court agreed, finding that the public sale was null and void because Dowell failed to meet a statutory notice requirement.” Id. “The trial court granted State Farm’s motion for summary judgment because Dowell’s claims depended on his ownership of the Jeep and, in the absence of a valid public sale, Dowell could not prevail.” Id.
Dowell appealed the trial court’s judgment. Dowell, 269 So. 3d at 664. The Court noted that “Dowell concedes that he failed to send the required notice to the vehicle owner within 7 business days after the initial date of storage, contrary to the mandatory language of subsection (4).” Id. As a result, the Court determined that “[Dowell] was not entitled to proceed with enforcement of the lien by public sale when the required notice of the lien and public sale was untimely.” Id. The Court reasoned that “[t]he notice requirements of paragraph (4)(c) are not discretionary; nor are they a technicality.” Id. (emphasis added).
The Court continued, “[b]ased on the plain language of the statute, timely notice is mandatory and serves several essential purposes, including making the vehicle owner aware that (1) towing and storage charges have been incurred, (2) a lien exists to secure payment of those charges, and (3) the towing-storage operator can enforce the lien—and in this case, will enforce the lien—by selling the vehicle if the charges remain unpaid after 35 days [or after 50 days depending on the age of the car].” Dowell, 269 So. 3d at 664 (citing Fla. Stat. § 713.78(4)(c)). “Additionally, because the notice here set the date, time, and location of the sale, this was the only notice of sale required to be sent directly to the vehicle owner.” Id. (citing Fla. Stat. § 713.78(6)). “For these reasons, time is of the essence.” Id.
The Court noted, “[i]f we took Dowell’s argument to the extreme—that the failure to comply with the notice deadline is of no consequence to a foreclosure sale—we would have to uphold a sale even if no notice of the sale was provided to the vehicle owner at all.” Dowell, 269 So. 3d at 664–65. “This would amount to writing the notice provisions out of the statute, which we are not willing to do.” Id. The Court concluded that the trial court correctly concluded that Dowell’s lien on the vehicle was null and void since he did not strictly follow the procedures in Fla. Stat. § 713.78. Id.