March 17, 2006
Re: Abandoned, junked, or wrecked vehicles ordinance
Dear City Manager
Your Management Consultant advised me of your questions regarding the above
ordinance appearing in your City Code, at '13-201 through 213. After reviewing this code
section, it is my opinion the City needs to consider adopting a different ordinance. This
determination is based on a conflict with Tennessee law and potential due process violations.
The City ordinance provides that the City will remove junked or abandoned vehicles from
private property if the owner fails to remove the vehicle after receiving notice of violation.
Tennessee Code Annotated ' 55-5-122(a) states that removal of a vehicle from private property
is illegal without the consent of the owner, unless the person removing the vehicle has acquired a
security interest in the vehicle, or has a court order. Paragraph (b) of the statute states that
municipalities are still authorized to regulate, by ordinance, parking and towing within city
limits, but does not go so far as to release cities from the requirement that a court order must be
obtained prior to entry upon private property and removal of the vehicle. Municipal judges do
not have the power or jurisdiction to enter orders for entry onto private property. Such orders
should rather come from a state court.
If a person violates T.C.A. ' 55-5-122, and removes a vehicle from private property
without consent or a court order, he commits a Class C misdemeanor, pursuant to T.C.A. ' 55-5123. Furthermore, such person is subject to a civil action by the owner of the vehicle in which
the owner is entitled to receive treble damages for the amount of money spent to recover the
vehicle moved. T.C.A. ' 55-5-124.
This is where a due process violation occurs, when the City enters someone=s private
property without hearing or a court order and removes personal property, even if it is a junk
vehicle. In addition to the state law cited above, a due process claim can be made against the city
under these circumstances.
In my opinion, regardless of the language contained in any ordinance adopted by a city, a
city must obtain a court order prior to entering upon private property and removing a vehicle.
It is also questionable whether the City can make violation of the ordinance a
misdemeanor, as municipal courts are civil in nature and lack the ability to impose criminal
sanctions. Only municipal courts with concurrent, general sessions jurisdiction can impose
penalties for criminal charges.
For these reasons, I recommend that the City repeal the existing ordinance and replace it
with an ordinance which removes these troublesome provisions. We have several at MTAS, and
I will assist your Management Consultant in the preparation of such an ordinance.
I hope this information is helpful. Thank you for consulting with MTAS.
Sincerely,
Melissa A. Ashburn
Municipal Legal Consultant