The following is an excerpt from one of the chapters of NCA’s publication, The Legal Reference Guide for Private Clubs. This handbook assists clubs with a wide array of legal challenges, ranging from operational matters and human resource issues to governance and membership policies. This comprehensive resource provides information on areas of liability and exposure that can arise and ways to be proactive in managing the risk. Written by attorneys specializing in private club issues, this definitive resource provides the private club industry with guidelines and policies to help clubs and their counsel manage legal risks and exposure.
Trespass
One of any club’s biggest assets is the real estate on which it sits. That is why it is so important for the club to know its rights in the realm of real estate law. Areas of liability that could impact a club include green belt, trespass, nuisance, eminent domain, land trusts and ad valorem taxes. It is imperative that clubs keep abreast of all the cases that have set precedent and are aware of any liabilities that could potentially affect them moving forward. This excerpt discusses the topic of trespass.
The right to exclusive possession of land underlies courts’ attitudes toward trespass cases. When a golf ball exits the course and travels to a neighboring property, a trespass occurs. The key issue becomes damages. A court might conclude that the errant shot constitutes a trespass but award no damages in situations where no harm is done. The law of trespass in a golf ball context has developed around situations involving more than a few isolated instances. The following are key cases involving trespass decisions.
- In Fenton v. Quaboag Country Club Inc., the plaintiffs purchased a home on land abutting a long-established golf course. On average, 250 golf balls entered plaintiffs’ property per year, breaking windows and, in one instance, hitting a plaintiff. A 24-foot high fence erected by the country club reduced but did not eliminate the problem. The court affirmed a finding of a continuing trespass and ordered an injunction.
- In Amaral v. Cuppels, homeowners filed suit after moving into new homes adjacent to the ninth hole of Middlebrook Country Club. The trial court denied relief in a nuisance analysis. The appellate court found a continuing trespass and granted injunctive relief requiring the course owners to acquire the land onto which the golf balls were landing or acquire the right to use the land for that purpose. The appellate court found that the regular and frequent non-permissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass. The appellate court rejected the course owners’ defense that the homeowners knew of the risk of errant golf balls prior to purchasing their homes, finding that while the notion barring nuisance claims based on a “coming to a nuisance” defense is well accepted, there is no similar notion of “coming to a trespass.”
- Two recent trespass claims by owners of properties subject to a master covenant on one hand and an easement on the other came out very differently. In Ivans v. Sun City Summerlin Community Association Inc., plaintiffs purchased lots adjacent to the 18th hole of the Highland Falls Golf Course in Sun City. The houses were subject to a master covenant acknowledging that maintenance of the golf course might occur early in the morning and late in the evening and that golf balls might land off the course. The covenant also provided for a release of liability for personal injury or property damage caused by golf balls. The court noted that plaintiffs had received prior to closing disclosures regarding the possibility of golf balls entering their properties. At the time the sales office was located where plaintiffs’ houses were ultimately built, and they were told that few balls hit the properties.
Four tee boxes were built on the 18th hole. Ivans’ house was 180 yards from the back tee and the other plaintiff’s house was 200-215 yards from the tee. Within about a year and a half, Ivans’ house had hundreds of stucco dings, 35 broken windows and damaged roof tiles. The story was similar next door. The course owners tried moving tee boxes and planting vegetation, but by the time of the trial the houses were still experiencing 25 hits per week. The court concluded that both plaintiffs suffered continuing trespass. The opinion also touched upon nuisance and negligence theories before awarding damages covering the cost of repairs and for loss of use and enjoyment of property. The court also permanently enjoined the club from using certain tee boxes or moving the tee box then in use to the south or east, which would add to the frequency of hits.
- In DeSarno v. Jam Golf Management, LLC the Court of Appeals of Georgia reached a different conclusion. The golf course developer sold an adjacent property for residential development subject to an easement that permitted golfers to retrieve balls and further provided “under no circumstances shall the … Golf Course Owner … be held liable for any damage or injury resulting from errant golf balls or the exercise of these easements.” The easement did not “relieve golfers of liability for damage caused by errant golf balls.” Plaintiffs purchased a lot adjacent to the 9th hole. About 10 to 15 errant balls were hit into the DeSarno’s yard each day. During two and a half years, they experienced 23 broken windows, 26 chips or breaks on the siding of their house, two dents in their truck, broken outside lights, and several near misses with their children. The court held, “because the easement in this case explicitly permitted the complained-of conduct and indeed exonerated the golf course owner from any liability for damages caused by the errant golf balls, no claim for trespass or nuisance could be maintained.
More details on case law regarding real estate law and other legal issues affecting private clubs is included in NCA’s new publication, The Legal Reference Guide for Private Clubs.