Further to my earlier email, there is a related case that is interesting as well.

 

Further to the golf course case, the buyers also sued the seller/builder of the property for breach of warranty.  The contract of sale and deed included an easement allowing golfers to enter upon the premises to “retrieve errant golf balls”.

 

Any lot adjacent to or in close proximity to golf course areas shall be subject to a perpetual right and easement for the sole and exclusive use of providing reasonable foot access to golfers to retrieve errant golf balls on unimproved areas of such residential lots. Boundary or peripheral fences or walls on such lots shall be prohibited.

 

Buyer contended that the seller was liable for breach of the implied warranty of habitability because the siting and design of the house made it unfit for habitation during golf season.  The court rejected the claim for two reasons: First, it held that the “warranty is breached by a home that is unsafe because it deviates from the building code, is structurally unsound, or fails to keep out the elements because of construction defects.”  Golf balls hitting the house are not defects in construction.  The court also rejected the idea that intrusion of the golf balls is a latent defect because buyers could have easily seen that the house is located off the 15^th tee and the contract specifically mentions the fact that golf balls may land on their property.

 

The court also rejected a claim that the defendants' failure to disclose the golf ball strikes to the house before the buyers purchased the Property does not establish a breach of the implied covenant of good faith and fair dealing.  The court said the implied covenant of good faith only applies to the performance of the contract, not its execution.

 

The opinion is very readable and contains a nice fact pattern for class or exam.  For those interested, a copy is attached.

 

 

Members of the list might be interested to read about a case involving a Massachusetts couple who bought a home on a golf course and then sued because golf balls were landing in the garden and breaking the windows.

 

The couple admitted that the course (which was built 20 years before) was there before they arrived.  The plaintiffs admitted that they knew the golf course was there: “Should we have looked into chances our house would be hit? Probably. I don’t know. We just fell in love with the house. It was our first house.” 

 

The result is that they have been traumatized: “Flying balls shattered windows in their house with such force they sent glass spraying into the next room; the siding on the house was peppered with circular dents, like a battleship in a war zone.”  Things got so bad that “their castle became their prison”.

 

The judge granted an injunction and the jury awarded $3.5 million for emotional distress (interest brings the award to $5 million).

 

An interesting aspect of the case is that the club took an easement on all the surrounding house lots before selling them to the public.

 

The hole has since been reconfigured and they admit that no more balls have landed in the year.  So, problem solved.  Nonetheless, the course is appealing because it cannot pay the judgement.

 

https://www.bostonglobe.com/2022/04/22/metro/family-terrorized-by-golf-balls-wins-nearly-5mm-neighboring-country-club/?s_campaign=bostonglobe%3Asocialflow%3Atwitter

 

 

 

 

 

Matthew P Harrington

Professeur titulaire

Directeur, Programme de common law

Faculté de droit

Université de Montréal

514.3436105

matthew.p.harrington@umontreal.ca