In Maryland, does a trespassing driver have to pay towing and storage fees, and can the tow company hold the car until paid?

Plain-English summary

A state senator asked two related questions about a common frustration: someone parks on private property without permission, the property owner has the car towed, and then the tow company won't release the car until towing and storage fees are paid. The Attorney General concluded that a trespassing vehicle owner is only liable for those costs if either a conspicuously posted sign clearly warned that improperly parked vehicles would be towed at the owner's expense, or a statute or local ordinance imposes that liability. Separately, and this is the more surprising part, the opinion concluded that even if the owner does owe the money, the tow company can only lawfully hold the car hostage until payment (assert a "lien") if a sign or law also specifically warned that a lien would attach, not just that towing costs would be charged. Maryland has no general statute creating a towing company's lien, so absent a qualifying sign or a local law, the tow company has to sue for the debt like any other creditor rather than simply keeping the car.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If I park on private property without permission and my car gets towed, do I have to pay the towing bill?
According to this opinion, only if a clearly posted sign warned you that improperly parked cars would be towed at your expense, or if a statute or local ordinance makes you liable. Absent one of those, ordinary contract principles may still make you liable if the circumstances show you implicitly agreed to bear the cost, but the opinion treats a clear posted warning or a law as the surest basis.

Can a towing company keep my car until I pay the towing and storage fees?
Not automatically, even if you do owe the money. The opinion concluded the towing company can assert a lien and hold the vehicle only if a conspicuously posted sign specifically warned that improper parking would create a lien for towing costs (not merely that towing would occur), or if a statute or ordinance creates that lien. Without one of those, Maryland's common law lien rules require the owner's actual or implied consent, which simply towing a trespassing car does not, by itself, establish.

Does any Maryland law generally give tow companies a right to hold vehicles for unpaid towing fees?
No. The opinion found that no state statute expressly creates a lien in favor of a private towing company, though the General Assembly considered several bills on the subject in 1988 that were not enacted, so any such lien has to come from a conspicuously posted sign or a specific local ordinance.

Can a county or city pass its own law to let tow companies hold cars for unpaid fees?
Yes. The opinion noted that charter home rule counties in Maryland have power under Article 25A to regulate the towing of vehicles from private property, and referenced the Attorney General's own separate opinion confirming Montgomery County's authority to do so.

Background and statutory framework

The opinion analyzed liability for towing costs through ordinary contract principles, distinguishing a contract implied in fact (where the parties' conduct shows actual agreement) from a "quasi-contract" implied in law (a court-created remedy where justice requires payment even without a real agreement, such as where the parties reasonably expected payment would occur). Drawing on an Arizona case involving a driver who parked in a posted no-parking zone warning of towing and a specific fee, the opinion concluded a court would likely find at least an implied-in-law obligation requiring a trespasser to bear the cost of undoing the trespass, particularly where a prominent sign put the driver on notice. Separately, the opinion recognized that a statute or ordinance, like a Prince George's County provision the Court of Special Appeals had applied in a related tractor-trailer towing case, can independently create that liability by its own terms; Maryland has no statewide statute regulating private towing of this kind, though local ordinances such as Montgomery County's exist.

The lien question, whether the tow company can actually hold the car, got separate and stricter treatment. The opinion explained that a common law possessory lien requires an express or implied agreement between the property owner and the person providing the service, so it is fundamentally consensual; towing a car pursuant to a police-ordered removal under a county ordinance, for example, was held in a prior Court of Special Appeals case not to create a common law lien, because the vehicle owner never consented to anything, the obligation arose "by operation of law," not contract. The same case held that a Commercial Law Article provision granting a lien to someone who has "custody... with the consent of the owner" and provides services "at the request of the owner" did not cover a police-directed tow, because there was no owner consent or request. The opinion concluded that a common law lien could still arise by implication if a sufficiently explicit sign, one that specifically warns that improper parking will create a lien for towing costs, not merely that towing will occur, is posted where all parkers can see it, since that kind of notice could support an inference of implied consent. Absent such a sign or a specific local ordinance creating the lien, however, the opinion found no legal basis in Maryland for a tow company to withhold a vehicle from its owner, since no state statute expressly creates a towing lien and general common law lien principles require consent that simply towing a trespasser's car does not supply. The opinion expressly noted it did not address whether a towing statute could raise separate procedural due process problems.

Citations and references

Statutes:

• §26-160 of the Prince George's County Code
• §26-306 of the Transportation Article
• Chapter 30C of the Montgomery County Code
• §16-202(c)(2) of the Commercial Law Article
• §7-307 of the Commercial Law Article
• Article 25A, §5(S) of the Maryland Code

Cases:

• Capson v. Superior Court, 139 Ariz. 113, 677 P.2d 276 (1984)
• Murrell v. Trio Towing Service, 294 So. 2d 331, 332 (Fla. App. 1974)
• Fields v. Steyaert, 21 Ariz. App. 30, 515 P.2d 57, 61 (1974)
• T.R. Ltd. v. Lee, 55 Md. App. 629, 465 A.2d 1186 (1983)
• Pollard v. Borneman, 201 N.W. 525 (S.D. 1924)
• Kunde v. Biddle, 41 Ill. App. 3d 223, 353 N.E.2d 410, 415 (1976)
• Younger v. Plunkett, 395 F. Supp. 702, 707-8 (E.D. Pa. 1975)
• Re Dave Noake, 12 Bankr. Ct. Dec. (CRR) 815, 816 (Bankr. D. Vt. 1984)
• Associates Financial Services Co. Inc. v. O'Dell, 417 A.2d 604, 606 (Pa. 1980)
• Bender v. Bender, 57 Md. App. 593, 599, 471 A.2d 335 (1984)
• De Franks v. Mayor and City Council, 777 F.2d 185 (4th Cir. 1985)
• Huemmer v. Mayor and City Council, 632 F.2d 371 (4th Cir. 1980)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

VEHICLE LAWS

Towing—Fees—Liens—Circumstances Under Which Vehicle Owner Must Pay Towing and Storage Charges.

December 19, 1988

The Honorable Albert R. Wynn
Senate of Maryland

You have requested our opinion on whether a vehicle owner who parks on private property without permission is liable for the cost when the property owner has the vehicle towed away. In addition, you ask whether a tow truck operator who tows a vehicle at the request of a property owner may retain the vehicle until the vehicle owner pays the towing and storage fees.
For the reasons set forth below, we conclude as follows:
1. A vehicle owner who parks without permission on private property and whose vehicle is towed away at the direction of the property owner is liable for reasonable towing and storage costs if (i) a conspicuously posted sign on the property provides unambiguous notice to the vehicle owner that the owner bears the liability for those costs, or (ii) a statute or ordinance imposes liability on the vehicle owner.

2. A tow truck operator who, at the request of the property owner, tows and stores a vehicle parked without permission on private property may retain the vehicle until the vehicle owner pays reasonable towing and storage costs if (i) a conspicuously posted sign on the property provides unambiguous notice to the vehicle owner that an improperly parked vehicle will be subject to such a lien, or (ii) a statute or ordinance creates a lien in favor of the tow truck operator.

                                 I
          Liability For Towing And Storage Costs

A. Common Law
There are two types of implied contracts, one implied in fact and the other implied in law. Parties who manifest their agreement by conduct create a contract implied in fact. This contract is actually no different than one in which the parties manifest their agreement by words; the law views both modes of assent as express contracts. See 1 Corbin on Contracts §18, at 41 (1963). A contract implied in law, however, commonly referred to as a "quasi-contract," is not a true contract, but rather is "the theory of recovery by which courts give a remedy similar to that historically available for breach of contract when courts find that justice requires such a remedy." 1 Corbin on Contracts §19A, at 34-35 (1984 Supp.). A quasi-contract is imposed "[i]f the plaintiff reasonably expected to be paid, if the defendant reasonably expected to have to pay, or if society's reasonable expectations of security of person and property would be defeated by nonpayment." Id.
In our view, these contract principles logically apply to a trespassing vehicle owner's liability for the cost of towing and storage. In Capson v. Superior Court, 139 Ariz. 113, 677 P.2d 276 (1984), a towing company was charged with theft for refusing to release an automobile until the vehicle owner paid a $75 towing fee. The vehicle owner had parked in an area where signs prohibited parking and "indicated that violators' automobiles would be towed away and a $75 towing fee incurred." 677 P.2d at 277. When the owner attempted to retrieve his vehicle, the towing company, which had been employed by the property owner, refused to return the vehicle until the fee was paid.
The towing company argued that there was an implied agreement by the vehicle owner to pay the $75 towing fee, because the no-parking signs made the cost clear. The court recognized that a contract in fact might exist since the driver parked in a designated no-parking area and was placed on notice of the financial consequence of his decision. 677 P.2d at 278.
Even if such an express contract were not found, we believe that a court would find an implied contract and impose the financial burden on a trespasser who parked in defiance of a prominently posted warning sign. "Society's reasonable expectation," in Corbin's phrase, is that the trespasser ought to bear the financial burden of rectifying the trespass. After all, a property owner has the right to have his property free from trespass. See Murrell v. Trio Towing Service, Inc., 294 So. 2d 331, 332 (Fla. App. 1974).1

B. Statutory Obligation
The obligation to pay may also be statutory. In T.R. Ltd. v. Lee, 55 Md. App. 629, 465 A.2d 1186 (1983), a police officer, acting pursuant to a county ordinance, directed a towing company to "unload, right, tow and store" an overturned tractor-trailer. 55 Md. App. 630. When the vehicle owner demanded that the towing company return the tractor-trailer, the company refused "until all assessed towing and storage charges were paid." Id.
The police had directed that the tractor-trailer be towed pursuant to §26-160 of the Prince George's County Code, which provided that "the County Police Department shall have authority to impound and remove [an unattended motor vehicle] and charge the owner thereof the costs of towing, storage and any other charges incurred in connection therewith." The court held that "a debt in the amount of reasonable towing and storage charges was incurred" by the vehicle owner under the authority of §26-160. 55 Md. App. at 633.
Although the ordinance did not apply to a request made by a private property owner, we have no doubt that the court's rationale would apply if the General Assembly or a local jurisdiction enacted a law that authorizes property owners to remove an illegally parked vehicle and imposes the financial burden on the vehicle owner.2 Such a law would provide the basis for holding a vehicle owner liable for the cost of towing and storing a trespasser's vehicle. See, e.g., Chapter 30C of the Montgomery County Code.

                                       II
                           Creation Of A Lien

A. Common Law
In T.R. Ltd., the Court of Special Appeals defined a common law lien as " 'the right "in one man to retain that which is in his possession belonging to another till certain demands of him [by] the person in possession are satisfied." ' " 55 Md. App. at 634 (quoting Brown, The Law of Personal Property §107 (2d ed. 1955).3 The basis of such a lien is an express or implied agreement between the owner of the goods and the person who renders some service with respect to those goods; thus, it must be consensual. Id. In T.R. Ltd., the police authorized the towing pursuant to a county ordinance. Because the vehicle owner had neither expressly nor impliedly consented to being towed, the court held that the towing company had no common law possessory lien since "[t]he debt ... arose not out of contract but by operation of law." 55 Md. App. at 635.
Similarly, in Kunde v. Biddle, 41 Ill. App. 3d 223, 353 N.E. 2d 410, 415 (1976), the court rejected a towing company's claim that it had a right to retain a vehicle until its owner paid for towing and storage costs: "[T]he mere towing of an automobile from a private parking lot without the owner's or lawful possessor's consent does not create a lien against that automobile. An automobile taken from a private parking lot without the lawful possessor's consent may not be withheld from him for his failure to pay the expense of the towing and storage." See also Younger v. Plunkett, 395 F. Supp. 702, 707-8 (E.D. Pa. 1975); Murrell v. Trio Towing Service, 294 So. 2d 331 (Fla. App. 1974). The towing company must look to the property owner for payment. Murrell v. Trio Towing Service, 294 So. 2d at 333 n.3.
In all of these towing cases, the vehicle owners were not put on notice that a lien would be created if they parked improperly. Thus, they had not impliedly consented to the creation of a lien. In short, these cases suggest that a common law implied lien is not readily created.4
Yet T.R. Ltd. and other cases do recognize the possibility of an implied lien, presumably involving conduct by the vehicle owner from which consent to the lien's creation is to be inferred. See Re Dave Noake, 12 Bankr. Ct. Dec. (CRR) 815, 816 (Bankr. D. Vt. 1984) (vehicle owner's failure to claim vehicle for two months after notice of towing is deemed consent to lien for storage charges). Cf. Associates Financial Services Co. Inc. v. O'Dell, 417 A.2d 604, 606 (Pa. 1980) ("nothing in the circumstances of this case suggests implied consent" by a vehicle owner to lien for garageman's expenses).
Hence, although we can find no case so holding, we conclude that a common law possessory lien in favor of a tow truck operator could arise by implication through posting of a sufficiently explicit sign plainly visible to all parkers. The sign would have to do more than notify trespassers that they will be liable for towing costs; it must also put them on notice that their improper parking will subject them to a lien for the payment of those costs.5

B. Statutory Lien
In T.R. Ltd., the Court of Special Appeals observed that: "Consent being an important element of a common law lien, any statutory attempt to create such a lien without the element of consent would have to be strictly construed as in derogation of the common law." 55 Md. App. at 635. The court further held that the Prince George's County ordinance authorizing the removal of an unattended motor vehicle and imposing a financial obligation on the vehicle owner "did not create or purport to create any lien as security for debts arising" under the law. Id. The court explained: "There is no mention of a lien, and none can be implied from the mere establishment of a monetary obligation on the owner of a vehicle."
Applying these same strict requirements, the court found no lien to have been created by §16-202(c)(2) of the Commercial Law Article, which provides as follows: "Any person who, with the consent of the owner, has custody of a motor vehicle and who, at the request of the owner, provides a service to or materials for the motor vehicle, has a lien on the vehicle for any charge incurred for ... [s]torage." The court held that, although the trooper had custody when he impounded the tractor-trailer, he did not have the "possession equivalent to ownership that is required to confer a mechanics' lien ...." 55 Md. App. 636.6
In sum, no State statute expressly creates a lien in favor of a towing company. Therefore, no statutory lien will be found unless a local ordinance creates it.7

                                     III
                                Conclusion

In summary, it is our opinion that:
1. A vehicle owner who parks without permission on private property and whose vehicle is towed away at the direction of the property owner is liable for reasonable towing and storage costs if (i) a conspicuously posted sign on the property provides unambiguous notice to the vehicle owner that the owner bears the liability for those costs, or (ii) a statute or ordinance imposes liability on the vehicle owner.

2. A tow truck operator who, at the request of the property owner, tows and stores a vehicle parked without permission on private property may retain the vehicle until the vehicle owner pays reasonable towing and storage costs if (i) a conspicuously posted sign on the property provides unambiguous notice to the vehicle owner that an improperly parked vehicle will be subject to a lien, or (ii) a statute or ordinance creates a lien in favor of the tow truck operator.8

1
In Fields v. Steyaert, 21 Ariz. App. 30, 515 P.2d 57, 61 (1974) (Stevens, J. dissenting in part and concurring in part), Judge Stevens viewed the towing company as a constructive bailee when at the request of the police it towed an illegally parked car. Judge Stevens applied the law of restitution to hold the vehicle owner liable for towing and storage costs since, "[a] person legally assuming custody over another's property for its preservation is entitled to compensation."
Like the law of contracts, a bailment relationship may be implied in fact or in law. 8 Am. Jur. 2d Bailments §62, at 798 (1980). When the law imposes a bailment, it is known as a constructive bailment. Unlike an implied contract, however, these principles may not necessarily impose liability on the owner. See Pollard v. Borneman, 201 N.W. 525 (S.D. 1924) (where there is no privity of contract between the property owner and bailee, the owner is not liable).
2
No State statute regulates private towing practices. Cf. §26-306 of the Transportation Article (reimbursement for towing costs when government agency wrongfully authorizes towing). In the 1988 Session of the General Assembly, several bills were introduced for the purpose of regulating the towing of vehicles from private property. See, e.g., Senate Bill 534 and Senate Bill 570, House Bill 306, and House Bill 1466. None of these bills, however, was enacted.
3
At its inception, the common law lien was a very limited right in the debtor's goods. It "was limited to those circumstances where a lien creditor undertook to render his services upon the implied promise of the lien debtor to pay him." Younger v. Plunkett, 395 F.Supp. 702, 707 (E.D. Pa. 1975). The lien creditor could not sell the debtor's goods to satisfy the lien nor did he have a right of present use and enjoyment. The lien only extended to the goods upon which he rendered his services, not to all of the debtor's property. 395 F.Supp. at 707 n.6.
4
A towing company that retains a vehicle unlawfully would be liable for conversion. See Bender v. Bender, 57 Md. App. 593, 599, 471 A.2d 335 (1984).
5
In Capson v. Superior Court, the Arizona court did not find that the vehicle owner had impliedly consented to the creation of a lien even though a sign had "indicated that violators' automobiles would be towed away and a $75 towing fee incurred." 677 P.2d at 277.
6
The court also rejected the argument that the towing company had a statutory carrier's lien under §7-307 of the Commercial Law Article.
7
Under Article 25A, §5(S) of the Maryland Code, charter home rule counties have power to regulate the towing of vehicles from private property. 73 Opinions of the Attorney General 246 (1988).
8
This opinion does not address the procedural due process issues that might arise from a statute governing towing. See De Franks v. Mayor and City Council, 777 F.2d 185 (4th Cir. 1985); Huemmer v. Mayor and City Council, 632 F.2d 371 (4th Cir. 1980).