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A recent article in the New York Times surveyed some of the problems of living on a golf course. The Times reported a settlement of the Amaral case in which Joyce Amaral had sued the Meadowbrook Country Club in Rehoboth, Mass., for what might be called “trespass by golf balls” to their property, which abutted the ninth hole. The litigation has been going on for years and the case was finally settled with the club agreeing to shorten the No. 9 hole, which should keep the Amaral property out of the line of fire. The case has alarmed golf-course owners all over the country, and has served as a warning to prospective homeowners in golf communities about this increasingly pervasive problem. About 70 percent of new courses include housing, and every once in a while a home built near one of this country’s 16,000 golf courses may turn out to be within the range of slicing duffers. In the case of Amaral & Pray v. Cuppels, Amaral testified that during a weekend in golfing season, up to a dozen balls typically come onto her property. At the trial she lugged into court six plastic buckets, each containing approximately 300 golf balls that she had retrieved from her yard during the five years she had occupied her home. She testified that in addition to those 1,800 balls, she had given many others away and had used others to play herself. Five window screens had been damaged by balls that hit her house, and one large window had been broken. One ball had landed on the hood of her car while it was parked in her front driveway with her family standing nearby. That ball left a dimpled dent in the car’s hood. On another occasion a golf ball struck her home so hard that it triggered the burglar alarm. The fear of being struck has had a significant effect on her use and enjoyment of the yard, and her landscaping workers even had to wear hard hats while working there. On one occasion a ball struck Pray’s husband while he was on the roof of their home, and balls regularly land in Pray’s backyard swimming pool. Therefore, she requires her children to wait until after dusk to use the pool. Trespass The homeowners were denied injunctive relief and damages in the trial court. On appeal a Massachusetts Appeals Court awarded injunctive relief on the theory that regular and frequent nonpermissive entry of golf balls onto a homeowner’s property added up to a continuing trespass. It cited earlier cases involving baseballs that were hit from a neighboring baseball field, and another golf case involving an annual average of 250 trespassing golf balls from a neighboring country club. Meadowbrook had argued that the homeowners, who played golf themselves, knew of the risk of wayward golf balls before they purchased their homes. Therefore, the owners should be barred by the defense that they had “come to a nuisance.” The appeals court rejected that argument because while the “coming-to-a-nuisance” defense is well accepted, there is no similar defense of “coming-to-a-trespass.” The golf course had existed years before the homeowners moved into their newly constructed homes, and the homes were developed independently of Meadowbrook and are unrelated to it. According to the court, before she purchased her home, Amaral had asked the realtor who showed her the house whether golf balls often came into the property, and was assured that it was not a problem. After moving into her home, she discovered that not only did the golf balls come into her property, but they were often followed by golfers hoping to retrieve them. While the court wasn’t asked to decide this issue, at some point courts will be asked to decide whether golf-ball trespassing is the type of defect in a property that must be voluntarily disclosed by a seller or a broker. Other Theories The court held that the club must either purchase or acquire the portion of the land that is under attack by the golf balls. In reaching its conclusion the court made a distinction between a nuisance and a trespass. While these two concepts are similar, a continuing trespass is a special kind of nuisance that involves an entry into, or invasion onto, one’s property. Nuisances � ear-splitting stereo sound, flashing spotlights or foul odors, for example � do not necessarily involve entry into another’s space. The court did not discuss whether the trespass theory could be extended beyond the club to the actual golfers. If a golfer hits a wayward ball off course and breaks your window � or your head � is that golfer legally culpable? Another question not discussed by the court is whether a golf club might, over the long run, acquire rights of adverse possession after golf balls had been hit into a certain area for more than the prescriptive period (in Pennsylvania, 21 years). The court mentioned that point in passing but did not reach a conclusion on it. It is possible that hitting enough golf balls in the same area could arise to an easement by adverse possession. On the surface, the use seemed to be “open,” “common,” “notorious” and “hostile.” However, the basic question is whether courts will recognize certain so-called “recreational uses” as subjects for prescriptive easements. Also, how frequently must balls intrude to meet the threshold of “continuous” use? And how would one measure the boundaries of an easement for scattered balls? Homeowners Homeowners who move near golf courses often are lured by the lush open vistas of fairways, lakes and greens in a landscape that they never have to mow or maintain. Their golf game and their clubhouse may be only a short walk from their patios. But with new golf clubs that enable average golfers to hit a ball 250 yards, errant golf shots are becoming an increasingly prominent problem. The Amaral case should send a message to both golf-course designers and to developers. Experienced designers and golf professionals agree that the worst place to build a house is on the right side of a hole about 150 to 200 yards from the tee. Locating near the green is also risky, even if the home is high above it. Some developers are dealing with these issues the old fashioned way: by calling in creative attorneys to draft their homeowners’ agreements. They sometimes include easements that permit a golf course to subject home properties to nuisances or other uses that may be incidental to the golf-course activities. Also, some agreements spell out that each owner assumes all risks associated with stray golf balls. Some have even gone so far as to include that the homeowners indemnify and hold homeowners’ associations harmless from any liability or expenses, including attorney fees, which arise from any property damage or personal injury. These agreements are untested but a cynic might say that the country club would get more bang for its buck by spending its money on free golf lessons to its members instead of fees to its lawyers. Harris Ominsky is with the law firm of Blank Rome and is a former president of the board of the Pennsylvania Bar Institute.

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