Those of you who know me, know that I am an avid golfer. Since Covid, I have whittled my handicap down to six (6), which means I usually shoot in the low to mid-eighties, but occasionally squeak out a round in the 70’s. I shot 75 once this summer at my home course, Triggs Memorial Golf Course, a Donald Ross designed municipal golf course located in Providence, RI. Last year Triggs was recognized as the 17th best municipal golf course in the Country. My brother Keith Allcock, a former golf pro and 1996 Massachusetts Public Links Champion, manages the food and beverage operation at the Golf Course, known as the Rescue Pub. I highly recommend Triggs if you are looking for a place to play, drink and eat. Come down and hang out with legends the likes of Ricky Badessa, Gary, Tommy (the “Rock”) DiRoccco, Big Mike a/k/a “Mikey- D”, Fat George (although he has lost some weight), Dennis the Menace, famous RI mafia lawyer, Jack Cicilline and Harry the Hawk, among others.
The guys I play with at Triggs hit the ball over the place. In fact, so do I. One of our members (Big Doug) is fond of telling me “Nice par from there”, which is more than an indication that I shouldn’t have been there in the first place. Fortunately, the law of errant golf balls is different in Rhode Island than it is in Mass. In Massachusetts, the law provides that errant golf balls constitute an automatic trespass. This has led to at least one Massachusetts golf course eliminating four (4) holes and becoming a 14-hole golf course and others redesigning tees, greens and fairways or erecting large nets to prevent golf balls from traveling onto nearby homes. I know of one particular Rhode Island golf course, which has a portion of the course situated in Massachusetts that also ran into this problem.
Smart golf course designers and developers ensure that neighboring developments and/or homes are subject to an “easement for errant golf balls”. Sometimes this golf ball easement finds its way into condominium or HOA documents. That puts homeowners on legal notice that golf balls will legally travel onto their property. One would think that people buying a home bordering a golf course would have some knowledge of this fact, but as we all know, common sense often goes out (and apparently through) the window these days.
The Indian Pond case is a perfect example. Last summer, a Plymouth County jury awarded a couple $5 Million Dollars for emotional harm they alleged to have suffered from being bombarded by golf balls by golfers trying to cut the corner of the dogleg par 4 15th hole. The couple purchased the home on Country Club Way in the Indian Pond Estates subdivision, which abuts the country club, in 2017. Over the next several years, their home where they lived with two young children was hit by 651 golf balls. The shots broke eight windows and damaged the house’s siding and a deck railing.
One of the homeowners testified to the mental exhaustion of worrying about golf ball strikes and their children’s safety, and his observations of his wife’s ‘hopeless[ness]’ and his children’s fear, stress, and nervousness. The wife testified that golf ball strikes interrupted her work calls and woke up her children during naps, describing the golf balls as ‘scary’ and ‘chaotic.’ Her expectations of being able to use the outdoor space at her home were unfulfilled.”
On December 20th, the Massachusetts Supreme Judicial Court vacated the $5 million jury verdict and remanded the case for a new trial, citing a critical legal error by the trial judge and providing further instructions as to how the next jury was to consider expert testimony as to the reasonableness of the design and intrusion causes by errant golf shots on the 15th hole.
The focal point on appeal was an easement contained in the Declaration for the Homeowner’s Association. The easement applied to 61 lots adjacent to the golf course. The easement(s) did two things. First, it provided that the lots were subject to an easement running in favor of the golf course for the “reasonable operation of the course in a customary and usual manner”. Second, the easement made the lots subject to an easement running in favor of golfers to access the lots to retrieve errant golf balls on unimproved areas of the lots.
The Supreme Court found that the Trial Court committed reversible error when it failed to instruct the jury that the above easements might have been tantamount to an easement for errant golf balls. The Supreme Court noted that providing golfers with the right to access the lots to retrieve errant golf balls might imply that they had an easement to hit the errant golf balls on the lots in the first place. The Court also noted that errant golf balls might be “reasonable operation of the course in a usual and customary manner”.
“We conclude that the trial judge erred when he did not interpret the documents creating the covenants and restrictions as a whole and in light of attendant circumstances. When read as a whole, the documents provide that the plaintiffs’ home was subject to an easement allowing for the “reasonable and efficient operation” of a golf course in a ‘customary and usual manner,’ Judge Scott Kafker wrote for the majority. “The failure to give the [proper] instruction was prejudicial, the verdict must be reversed and the injunction lifted.”
Judge Kafker also noted that errant golf balls are part of the game.
“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game. They demonstrate the difficulty and challenge of the sport even for the very best players,” Kafker wrote. “Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in the instant case — golf shots go awry, as a matter of course.”
In addition to the issue regarding the easements, the case was also sent back for a clear jury instruction relative to the conflicting testimony of the expert witnesses relative to the design of the 15th hole, as whether its existence in its current form, was a “reasonable golf course operation”.
The great thing about this case from an HOA or condominium perspective was the Supreme Judicial Court’s dissecting the HOA documents, citation of established condominium precedent and interpreting them in a straightforward and common-sense way. In that sense the case may serve as future interpretive precedent for condominiums and HOA’s. The lesson is perhaps the developer and creator of the easement could have been clearer in their drafting so as to avoid this whole controversy, but the SJC clearly seems to think the developer may have done enough given that the homeowners purchased their lot with these easements and “servitudes” in place. More importantly, the SJC’s decision seems in accord with common sense. If you buy a house bordering a golf hole, you should probably expect to encounter some errant golf balls. That’s what happens when you are golfing in the servitudes.
For a copy of the Court’s Decision on Tenczar v. Indian Pond Country Club, Inc. [CLICK HERE].
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