Property Damage resulting from Driving Range

Our community has a driving range. Recently it was brought to the attention of the current BOT that an errant golf ball caused damage to an adjacent home four years ago. The home owners recently filed a claim with our Judiciary Committee for the association to pay for the damages, and the Committee agreed with the homeowner and ruled that the association should pay based largely on the fact that this has been going on for almost four years. I can find case law concerning communities with golf courses, but nothing specific to our situation. Anybody out there have a similar situation or advice to share?

Why would you think that there is a difference in liability between golf courses and driving ranges?

Krista

So the buyers could not see there was a driving range beside them?

I've been here only about a year, so to be honest I don't know which came first, the chicken or the egg. Our property manager (who seems to be the only one who can find out) is out and won't return before the rest of the board wants to vote. I'm just trying to collect all the info I possibly can before I vote.

The damage happened four years ago. From what I understand (I've been in the community only a little over a year, and joined the board 2 weeks ago) the issue was "forgotten" until recently when the homeowner approached the board and asked for the window to be replaced by the association. The property manager at the time is long gone and left no notes or any other indication that he had inspected the net at the time of the incident. Even though 4 current board members were on the board then, none of them have any recollection as to exactly what happened at the time (again, no notes or meeting minutes). The net was raised and retied about a year ago.

When the board refused their request the homeowner filed a complaint with the Judiciary Committee which ruled in favor of the homeowner. The board, at this point at least, disagrees with the committee. One member is ready to go to court. Tell me if I'm being too naive, but my thoughts are leaning toward the homeowner. They cannot prove the net was deficient, but at this point, the association cannot prove it was not. Seeing as how the window will cost hundreds of dollars less than going to court, I vote for the window. I might also add that in it's response, the Committee made it clear that nothing in our by-laws puts responsibility on the association, but that because both the Property manager and board allowed the issue to fall through the cracks, they were siding with the homeowner.

Can it even be proven that it was a golf ball that hit the window?

From my reading, the courts do care about prompt notice when damage has occurred. Failure to give prompt notice may remove liability for damages. You say the owner is ready to go to court. From what you relate, on the one hand, I think they would be foolish to do so. I expect they would lose. On the other hand, the HOA would most likely have to use an attorney (under the laws for corporations), once a complaint was filed in court. Krista, I think you're right to expect that the cost of the attorney would exceed the cost of replacing the windows.

Your board could consult an attorney, but lately I am seeing, incredibly, such incompetent HOA attorneys I hesitate to suggest this.

Out of fiduciary duty, I think I would deny the owner payment for the window. I would explain that the owner had a duty to promptly report the damage; now the HOA is not able to confirm the source of the damage; and so the Board cannot explain payment for the windows to owners. Hence the request is denied. Your Board will roll the dice on whether this member goes to court, but I think you are stuck with this possibility.

Four years ago? It's done

Did the members replace the window already? Or have they been living with a cracked, blemished window all these years (lowering property values?)?

Excellent. I'd vote to pay for the new window. This is less than the likely attorney's fees (just for consulting) and builds good will both with the members and the Judiciary Committee. All told, the cost of the window is an excellent investment.