Picture this:

You rush to visit a client for an important meeting in a private building.

In a hurry, you park your vehicle in a bay marked “Reserved”.

When you return, you are greeted by an infuriating sight: your car is trapped behind a cone, a heavy chain, or a solid metal wheel clamp.

The parking attendant politely tells you that because you parked in a reserved lot, you cannot leave unless you pay a “release fee” of RM100.

Feeling cornered, you pay the money just to get your car back.

You may even write “under protest” or “without prejudice” on the receipt to show your deep dissatisfaction.

Is that the end of the story? In many common law countries, the answer is “No”, especially if this so-called release fee is really a private ransom dressed up as parking discipline.¹General proposition derived from Commonwealth authorities on trespass to goods, conversion, and unjust enrichment, including Vine v London Borough of Waltham Forest and Maskell v Horner.

The real wrong: trespass to goods and conversion

If you sue the carpark owner or building owner, courts are often not very interested in your bad parking manners.

Parking in the wrong bay on private land is usually treated as a breach of contract or a simple trespass to land. It rarely justifies forcible interference with your vehicle, your chattel.

The law instead focuses on what the parking company did to your personal property. The court asks whether there was “wrongful interference with goods” rather than whether you broke parking etiquette.²This falls within the torts of trespass to goods and conversion.

If anyone deliberately interferes with your car without lawful authority, they commit trespass to goods.

If they then refuse to return it unless you pay, that often becomes conversion, meaning they are behaving as if your car were their own property.

A famous example of conversion arose after the invasion of Kuwait, when Iraqi Airways took and used Kuwait Airways’ planes.³Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) 2 AC 883 – Iraqi Airways appropriated and used Kuwait Airways’ aircraft following Iraq’s invasion of Kuwait.

The House of Lords held that deliberately exercising control over another person’s aircraft, in a way inconsistent with the true owner’s rights, is conversion and attracts strict liability. It does not matter if the wrongdoer thought they were acting in good faith or under a landowner’s instructions; that is not a defence.

So, when a parking operator clamps your car and declares “no money, no release”, they are not just enforcing internal rules.

They cross a serious legal line into trespass and conversion.

By detaining your car and refusing to release it without payment, they assert dominion inconsistent with your rights as the owner.

Duress of goods: money paid under pressure

The common law has an old name for this kind of pressure: duress of goods.⁴Duress of goods is a recognised vitiating factor in restitution, covering payments made to recover property wrongfully seized or detained.

If someone wrongfully detains your property and demands money for its release, any payment you make is not a free bargain. It is money paid under illegitimate pressure.⁵Payments made to recover goods unlawfully held are treated as “compelled” rather than “voluntary” in the doctrine of unjust enrichment.

Courts have long treated these payments as recoverable.⁶Restitutionary claims for money had and received are traditionally allowed where payment is induced by duress of goods.

Classical cases involved traders forced to pay illegal market tolls under threats that their goods or stalls would be seized. The traders later sued and recovered their money as “money had and received”.⁷ Duress of goods case law includes instances where traders paid unlawful market tolls under threat of seizure, and later recovered those sums in money had and received actions.

In the classic case Maskell v Horner, a market operator demanded unlawful tolls and threatened to seize and sell a stallholder’s stock if he did not pay.⁸In Maskell v Horner 3 KB 106 this is how the dispute arose. From 1900 to 1912, Maskell ran a business near Spitalfields Market. Horner owned the market. He demanded that Maskell pay “market tolls”. Maskell refused to pay. In response, Horner seized Maskell’s goods and threatened to shut down his entire business. Maskell saw that other dealers were paying. To protect his goods and keep his business running, he paid the tolls “under protest” for 12 years. A later court case, Attorney-General v Horner (No. 2), proved that Horner never had the legal right to collect those tolls. Maskell sued Horner to get his money back, arguing he only paid because he was forced to. The Court of Appeal ultimately ruled that Maskell could recover the money because it was paid under compulsion rather than voluntarily.

The stallholder paid over time to avoid seizure and then sued.

In Maskell, the plaintiff made repeated payments solely to avoid seizure of his stall goods and loss of trading position.

The Court of Appeal held that those tolls were recoverable precisely because they were paid under duress of goods and under the imminent threat of seizure.

Lord Reading CJ said that if a person pays money they are not legally bound to pay, under the compulsion of urgent necessity or seizure, they have an absolute right to recover it.⁹Lord Reading CJ’s statement in Maskell v Horner is widely cited as the classic formulation of recovery for payments made under duress of goods.

When you write “under protest” on your RM100 parking receipt, you are doing what those traders did

You signal: “I do not agree, I owe this money; I am paying only because you are holding my property hostage.”

This is strong evidence of duress of goods. It supports your claim to recover the RM100 under the modern law of unjust enrichment.

The clamper’s usual excuses – and why they fail

Parking contractors and building managers typically rely on a standard menu of excuses, such as:

“Our house rules allow this.”

“We have a lien over the car.”

“Our bylaws authorise clamping.”

“There were signs, so you agreed.”

“Everyone else pays; it is only RM100.”

They may sound confident.

They are wrong.

Case law and commentary show that these defences frequently fail when tested against orthodox principles of tort, contract, and administrative law.

The myth of a ‘parking lien’

A lien is a legal right to detain someone else’s chattel. There is no automatic “parking lien” just because someone says parking charges are due, you parked in the wrong place, or you did not pay.

Liens fall into narrow, recognised categories. They arise only in specific situations, such as when a workshop holds your car after repairing it, or where a statute or contract clearly creates the right.¹⁰For example, repairers’ and warehousemen’s liens, and certain statutory garage keepers’ liens, are narrowly confined.

Courts are reluctant to recognise new liens.

British Commonwealth cases make clear that you cannot invent a new “parking lien” by putting up a warning sign and then clamping cars. The operator cannot create a legal right unilaterally by wording on signage or internal rules.

In Irving v Keen, the court accepted that a repairer has a possessory lien for unpaid repair bills, but stressed that this depends on a narrow, specific relationship.

Even where statutes permit garage keepers’ liens, those laws spell out who may claim them and how and when they must be enforced.¹¹Garage keepers’ lien legislation in the Commonwealth and Canadian provinces sets out precise requirements, confirming that, without a statute, there is no automatic lien for storage or parking charges.

A parking operator who merely oversees bays does not fit into any traditional lien category. In the Scottish case of Black v Carmichael, unauthorised wheel clamping and demands for money were treated as conduct close to theft and extortion, not as a legitimate lien.¹²In Black v Carmichael (1992), private wheel clampers in Scotland were charged with theft and extortion for immobilising cars and demanding release fees. The High Court of Justiciary ruled this illegal, deciding that temporary deprivation of property constitutes theft in Scots law, effectively banning private clamping.

In England, private wheel clamping is a criminal offence under the Protection of Freedoms Act 2012, punishable by unlimited fines. Only statutory authorities can immobilise vehicles. Private landowners must now use Parking Charge Notices (PCNs) instead.

Calling something a “lien” on a sign does not make it a real lien.¹³Unilateral labelling of a power as a “lien” does not satisfy the legal requirements for a true possessory lien.

Just because a parking operator claims a legal right does not mean it exists.

Do Bylaws and house rules bind you? Nah…

Do bylaws and house rules help the clamper? No.

Such rules are always subordinate to national law. They cannot create drastic powers that the main statute does not clearly grant.¹⁴Subsidiary legislation and corporate bylaws must be consistent with enabling statutes and general law; ultra vires rules confer no lawful powers.

In Malaysia, the Court of Appeal struck down the Kota Bharu Municipal Council’s wheelclamping bylaw. The council had clamped cars and charged fees, but the court ruled those rules invalid because they conflicted with the Road Transport Act 1987.¹⁵In Nursyafawati bt Kasim v Majlis Perbandaran Kota Bharu Bandaraya Islam [2023] 1 MLJ 378 the High Court held that the local authority could clamp the plaintiff’s car and lawfully charge two separate sums: a parking compound for overstaying and a fee to unclamp the vehicle, both authorised by the Road Transport Act and related ministerial powers, so the plaintiff was not punished twice and the council’s decision was reasonable, lawful, and not oppressive. This decision was rightly reversed. Contrast that with Iqbal Feiruz Khan bin Mohamad Rafik lwn Adrian Wong Shiang Hoe MLJU 1345. There the Court of Appeal dismissed Iqbal’s appeal. It concerned an alleged libel arising from an exchange of emails over Iqbal’s car being clamped by the management body of a condominium. The court focused on defamation. It ought to have, but did not, ask itself whether the condo management had – in the first place – the legal right to clamp Iqbal’s car or charge fines for “unauthorised” parking. The outcome fits defamation law, but the reasoning appears to erroneously assume that the joint management body had lawful power to clamp the vehicle. One can say the same thing about an employment case in Mohd Najib bin Sulaiman lwn Berjaya Times Square Joint Management Body [2014] 1 ILJ 117.

If a municipal council cannot simply grant itself clamping powers, a private parking company relying on ‘self-drafted house rules’ stands on very thin ice.¹⁶Private bylaws cannot lawfully create broader clamping powers than Parliament has conferred on public authorities.

“Distress damage feasant” – a relic

Some lawyers try to rely on an old property remedy called “distress damage feasant”. This allowed seizure of chattels that were found damaging land. The theory is that your car is “damaging” the land by being in the way, so the operator can seize it until you pay. This concept has been largely confined, and courts disapprove of its use in modern parking disputes.¹⁷Modern courts treat distress damage feasant as archaic and narrowly confined.

In Arthur v Anker (1997), the English Court of Appeal doubted that distress damage feasant applied to simple parking trespasses and instead analysed the case using consent and contract principles.¹⁸Arthur v Anker is the leading authority on the interaction of distress damage feasant and consent-based clamping on private land.¹⁸The court questioned the relevance of this medieval doctrine to routine parking trespasses, preferring to analyse such disputes through consent and contractual terms.

“You saw the signs, so you consented”—yeah, right…

Today, the main defence is consent: “There were signs, so you consented.”¹⁹Arthur v Anker and Vine v Waltham Forest form the core English authorities on private clamping and consent via signage.

In Arthur v Anker (1997), the driver admitted he knew what the signs said, yet chose to park there repeatedly anyway. The court treated this as actual consent to clamping and a reasonable fee. Clampers used this “consent” argument to justify private clamping. In 2012, this defence was made illegal under the Protection of Freedoms Act 2012. It which criminalised the practice.²⁰In Arthur, the motorist’s awareness of prominent clamping notices and his [repeated] choice to park regardless were treated as consent to clamping and a reasonable fee. The court ruled he had ‘consented to the risk’ by ignoring the notices.

In Vine v Waltham Forest LBC [2000], the driver was distressed and ill and did not see any warning signs.²¹In Vine, the claimant had not seen any clamping warnings because of her medical condition and the positioning of the signs. What happened there was this: in Vine, the Court of Appeal ruled on whether a driver was bound by a “no parking” sign they hadn’t seen. Ms.Vine felt ill, pulled into a private car park to be sick, and was clamped. There were two signs, but she didn’t see them due to her physical distress and the car’s position. The clamper argued she “consented” to the risk of being clamped by parking there (volenti non fit injuria). The court held that for a driver to “consent” to being clamped, they must actually see and understand the warning signs. Since Ms Vine had not seen the signs (and had a reasonable excuse for missing them), she had not consented to the trespass. The clamping was held to be an unlawful battery of her property, and she was awarded damages.

The clampers argued that the mere presence of signs implied consent. The Court of Appeal rejected this, treating clamping as prima facie trespass to goods and holding that consent is only a defence where the motorist actually knew, or can fairly be taken to have known, of the specific warning.²²The ratio in Vine is that consent or assumption of risk can only be inferred where the motorist has actual or properly inferable knowledge of clear warning signs; mere existence of signs is insufficient.

Vine is a strong shield for motorists: there must be real, unfeigned consent.²³Subsequent commentary views Vine as setting a high threshold for inferring consent to clamping via signage.

The landmark contract case of Thornton v Shoe Lane Parking underlines this. It holds that if management wishes to enforce harsh terms such as wheel clamping or RM100 fees, these terms must be made extremely clear to the driver before the contract is made, that is, before or at the moment of parking.²⁴Thornton v Shoe Lane Parking held that particularly onerous or unusual terms will not be incorporated unless brought to the customer’s attention before or at the moment the contract is concluded.

Small, hidden, or faded signs behind pillars will not suffice.²⁵Applying Thornton, inconspicuous or belated clamping terms cannot be enforced against an unsuspecting motorist. But signs alone are not enough. Where did the clamper notify a motorist that if he ‘mis-parks’ his car would be clamped? Was it displayed before the motorist had entered the parking lot?

A detailed paper by the RAC Foundation supports this view and criticises clamping schemes that rely on marginal signage and disproportionate fees.²⁶The RAC Foundation’s report on wheel clamping surveys case law and policy, and criticises clamping regimes that rely on marginal signage and disproportionate fees.

Modern duress cases all warn that holding property hostage is very risky for the holder.²⁷Taken together, these authorities discourage private parties from using detention of property as leverage for disputed charges.

Who to sue, and what to claim

If you are clamped, your legal options are stronger than you may think.

You can:

File a case in the consumer court to keep legal costs manageable.

Claim trespass to goods for the physical interference with your car.

Claim conversion if they unreasonably refused to release your car when you demanded it.

Claim unjust enrichment to recover the RM100 paid under duress of goods.

You may also seek damages for loss of use of your vehicle and any reasonably foreseeable consequential losses, such as missed business appointments or alternative transport costs. In interference with goods claims, courts may award damages for loss of use and foreseeable consequential losses.

Do not stop at the parking contractor. They are often just the muscle. You can sue the building owner as well

If the building owner or management corporation designed the clamping system, approved the signs, or instructed the contractor, they can be held jointly liable. The law of torts allows you to sue both the direct wrongdoer and the authorising principal.

This dual-target strategy is common in English clamping disputes, where landowners and clamping firms stand side by side in court.

Bringing it back to your RM100

In your “RM100 to free my car” scenario, the legal landscape generally favours the informed motorist.

Even if you parked in a reserved bay, if there is no clear evidence that you accepted a warning that your car could be detained for ransom, the clamper’s defence is weak.

There is no automatic parking lien. Any internal house rule that tries to create one is highly suspect and almost certainly invalid, with less value than a roll of toilet paper.

Medieval distress damage feasant will not rescue the management, especially where consent is absent.²⁸Arthur v Anker confirms this, particularly where consent is not present.

Detaining your car and refusing to release it unless you pay an arbitrary fee fits the classic legal definitions of trespass to goods and conversion. The RM100 release fee is money extracted under duress of goods and is, in principle, recoverable.²⁹On the model of Maskell v Horner and modern unjust enrichment, a release fee is recoverable if extracted by illegitimate pressure on your property.

Malaysian law accepts the unjust enrichment framework and allows recovery where someone is enriched at your expense without a legal basis.³⁰Tan Chong Industrial Equipment Sdn Bhd v Transnasional Express Sdn Bhd & Ors (CA) – Malaysian Court of Appeal recognising unjust enrichment and coercion arguments in a settlement/land transfer context.

By protesting this highhanded treatment, you are not being difficult. You are doing what the common law expects of principled citizens when private entities turn personal property into a bargaining chip. The common law has always offered remedies to those who yield to coercion to protect their property.

Your legal stance can be put in two short lines:

“You may own the building or manage the parking.”

“You may not lawfully hold my car to ransom.”

 

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We thank Steven Van Elk of Unsplash for the image.

The author thanks Miss KN Geetha, Miss Lydia Jaynthi, Miss TP Vaani and Miss JN Lheela.

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