Tee\'d Off
Golf Course Developments: Tee’d Off Owners, How Do We Limit Exposure?
You are enjoying your morning coffee looking out over the beauty of a dewcovered fairway from the serenity of your home when “bam,” a golf ball careens off your sliding glass door or your roof. Your magic moment is destroyed and your blood pressure rises. Whom do you blame? Is it the golfer who hit the errant shot? Is it the golf club that operates the course? Is it the homeowners association that did not warn you that your home was routinely under attack from golf balls? Or are you to blame, because you did not perform due diligence when you bought the property and believed the prior owner that such incidents “were infrequent.”
From the perspective of a community association located adjacent to a golf course, there is a reasonable probability that the owner will blame the Association. It is all too apparent in present-day society that many people will work hard to avoid taking personal responsibility for anything. The sad truth is that prevalent mentality means that community associations must be ever vigilant in developing strategies to avoid homeowner liability claims.
The most critical issue in ascertaining Association liability for errant golf balls is whether the Association has any control over golf course operation. As a practical matter, it is rare that a community association will have any operational control over the golf course. However, if there is some element of control in the Association, liability to members for property damage and personal injury is a real threat because the Association has an obligation to protect its members from foreseeable harm. Since that scenario is a rarity in the development world, I will focus on the real factors facing community associations and how to effectively insulate the Association from liability.
There have been a myriad of lawsuits by homeowners against golf courses alleging that the golf course is operating a nuisance which unreasonably interferes with the owners’ quiet enjoyment of their property. In determining culpability the courts traditionally look at various factors such as: was the golf course built prior to the homes; what physical surroundings exist which impact the situation; owner knowledge of risk prior to purchase; frequency; and the nature and extent of injury. (Hellman v. La Cumbre Golf and Country Club (1992) 6 Cal. App. 4 1224).
But the community association can responsibly and effectively limit exposure to these sorts of claims simply by making a concerted effort to identify what homes experience periodic or frequent golf ball intrusion and disclosing that information as a routine part of the Association’s Civil Code Section 1368 disclosure package.
By sending a questionnaire to the membership to determine
the extent of the golf ball problems, the Association can obtain the
information it needs to formulate a factual disclosure and disclaimer
such as the following:
NOTICE: THIS PROPERTY IS LOCATED ON A GOLF COURSE AND IT HAS
BEEN DETERMINED THAT GOLF BALLS FREQUENTLY IMPACT THE PROPERTY AND SURROUNDING
2 AREAS. THE ASSOCIATION DOES NOT CONTROL THE GOLF COURSE AND THE ASSOCIATION
DISCLAIMS ANY AND ALL LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE
RESULTING FROM GOLF BALLS ENTERING THE PROPERTY. BEFORE PURCHASING THE
PROPERTY YOU SHOULD INVESTIGATE THE FREQUENCY OF THIS INTRUSION AND
DETERMINE WHETHER IT WILL INTERFERE WITH THE ENJOYMENT OF THE PROPERTY.
The disclosure should be included with every escrow package with a request
that an acknowledgment of receipt be signed.
Making this disclosure and disclaimer will not automatically or completely insulate the Association from liability. However, it will largely eliminate the contention that the owner was unaware or was mislead or lied to by the Association.
In addition, where serious problems exist, it would be wise for a community association to take steps using landscaping or screens to mitigate the situation. Depending on the Association’s maintenance obligation and insurance coverage, the Association may have a direct financial interest in taking these steps so as to avoid the potential maintenance costs of window replacement, broken roof tiles or the like if the Association consists of condominiums.
Limiting exposure can also be accomplished through flexible application of architectural restrictions to owners with golf ball problems. For example, if strict reading of the architectural rules of the Association prohibits installation of certain landscaping, the Board or architectural committee, when faced with a request designed to mitigate this type of problem, should work with the owner to develop a plan which is both aesthetically acceptable and mitigates the owner’s problem. Where Associations’ run into problems is when the first response they make is to simply say “no” to the architectural request without considering other options and approaches. An Association is obligated to adopt reasonable rules and regulations and apply them reasonably in all situations.
An Association which, through a denial of an architectural application effectively prevents an owner from mitigating his or her own potential golf ball damage, may be asking for liability. The reality of limiting exposure to claims by Associations is primarily a public relations task which sometimes is in conflict with strict enforcement of the rules. But if your rules do not provide for flexibility and discretion to deal with situations like this, those rules should be modified. The unstated but ultimate goal of the Association is to maintain a high quality of life, not to intractably enforce rules to the detriment of the quality of life.
The Association would also have a legitimate interest in raising the issue of a design change with the golf course management which can be implemented to prevent the hazard without negatively impacting the course. Sometimes, these changes can be as simple as installing some trees to block errant ball flight. If the golf club consists of a number of Association members, the Association may have considerable clout because of the dual memberships in the club and the Association. Often, a public demonstration by the Association of an interest in solving a problem on behalf of an owner will help to limit the Association’s liability exposure. Moreover, there have been some recent court decisions which support Associations’ exercising of “political clout” on behalf of the membership, even if this involvement creates a financial burden to the Association associated with such exercise.
The challenges of a golf course adjacent community association are unique in that the Association must find ways to make the coexistence of the two entities harmonious. As a practical matter, people purchase in these communities because they are golfers or because they appreciate the beauty of the setting. Installation of ugly, 40 foot high screens is a solution that undermines one of the essential reasons why people purchased these properties in the first place. Consequently, Boards and Managers of these Associations are forced to deal creatively in the balancing of the desire to preserve the aesthetics of the environment with the goal of limiting exposure to claims. For the Associations, the single most important step in this process is to address the problem, not to ignore it or simply blame someone else.
Robert D. Hillshafer is a Principal in the firm of
Hillshafer, Loewenthal & Rosen with offices in Sherman Oaks, Upland,
Ventura and Santa Barbara
