Many Floridians enjoy the spaciousness and beauty of golf course views from their homes. Unfortunately, in these Homeowners’ opinion, this serenity is sometimes marred by golfers who seek, errant balls or by the balls themselves resounding off the exterior walls. Homeowners frequently wonder if there is anything that can be done about these annoyances.
A person who enters another person's property without permission is trespassing. Trespass is one of the oldest types of civil law claims but a cause of action only exists if the trespasser is warned and asked to stop and if there is no valid reason for the trespasser's presence.
A trespass could be airborne or subterranean because a property owner's rights also extend into the air above the property and into the ground below. A person who flies a model airplane over a property or someone who shoots a gun across property lines is both trespassing.
Entry onto land without the owner's express consent or invitation would be permissible under certain circumstances, If someone was in a boat in a canal behind a home and the boat began to sink, the boater would be permitted to land on the closest property because of necessity. In fact, the homeowner could be liable for injuries if he turned the sinking boat away. Of course, the boater would not be permitted to pitch a tent and have a barbecue once he has landed.
Emergencies constitute a similar privilege. Police may chase suspected criminals across private land, firemen may string hoses and neighbors may rescue a child from a neighbor's pool if they believe he is in jeopardy of drowning.
Golf course communities almost always have a section in their deed restrictions, easements and covenants that permit golfers to retrieve their errant balls. This section might read: "Every Lot and the Common Area is burdened with an easement permitting golf balls hit from the Club facilities to unintentionally come upon the Lot and for golfers at reasonable times and in a reasonable manner to come upon the exterior portions of the Lot to retrieve errant golf balls." If the Lot is fenced or walled, the documents usually confirm that the golfer must seek the Owner's or Occupant's permission before entry.
In other words, people may enter property to retrieve items such as golf balls, or pets if they do so in a reasonable manner. Tearing down a fence would not be considered reasonable. Every owner of property located on or adjacent to a golf course should become familiar with the applicable sections of the deed restrictions, easements and covenants governing their property.
A second concern is the damage that may be done by these errant balls. The Golf Club, the builder and the course designer are usually protected in the documents that are signed at closing. The homeowner usually assumes the risk of damage and may wish to insure against this event. Golfers may be responsible for damage but collecting is usually difficult and impractical.
Most golfing communities address golfers' liability with a clause similar to the above, "All owners, by acceptance and delivery of a deed to a Lot, assume all risks associated with errant golf balls, and all Owners agree not to make any claim or institute any action against the Community Developer, the Club, the golf course designer, the builder or any other party other than the golfer who caused the property damage or personal injury, arising or resulting from any errant balls or golf clubs. In other words, the golfer is responsible for damage but collecting, especially for minor damage, may be an impractical task for the homeowner.
The above being said, there are a few cases in which homeowners have attempted to sue the golf course when the course layout was reconfigured or enlarged. In Bechhold v. Mariner Properties, the court stated that, “living on a golf course and living with golf balls necessarily go hand-in-hand. The issues here are whether the Bechholds are being subjected to more than a reasonable exposure to golf balls and what steps, if any, would be appropriate to remedy this problem.” Bechhold, 576 So. 2d 921 (2nd DCA 1991). The court further stated, “[t]he law of private nuisance is a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is ‘an appreciable, substantial tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure.’” Id. at 923.
In another case, City of St. Petersburg v. Gordon, the city added a driving range to an existing park and subsequently, balls hit on the range damaged a woman’s home and car. The court held, “Because the City decided to improve Dell Holmes Park by adding a driving range and other golfing structures to the park, it had a duty to safely maintain and operate the driving range.” The range did not have a large net or fence to prevent balls from going beyond the boundaries of the range and thus, was determined to be negligently operated.
Marauding golfers and destructive balls are rare in most communities. Seek the advice of an attorney if a problem is severe. If not, enjoy the view.
Raymond Schumann is a Board Certified Real Estate Attorney with his offices are located at 222 Seabreeze Blvd., Daytona Beach, FL 32118. He can be reached at 386-257-1222 or through the firm's website at ricelawflorida.com.
Posted on March 19, 2018