Can Homeowners Who Live Adjacent to a Subdivision Golf Course tell the Owners to Clean up their Mess?

Homeowners are required by deed restrictions to keep their residences in tip top condition. However, maintenance duties of neighboring subdivision golf course owners are usually not governed by such deed restrictions, and often times they fail to maintain their property according to appropriate community standards. Such failures may be severe and cause unsightly and dangerous conditions which can diminished home values. Specifically, abandoned clubhouses, damaged bridges and cart paths, inoperable water features, dangerous tree limbs, uncut weeds, rodent filled storage areas, and areas susceptible to trespassers and vagrants are some of the problems that plague unkept golf course communities.

So, what can homeowners do to compel subdivision golf course owners to “clean up their act” and eliminate conditions which put the integrity of their neighborhood at risk?

The place to start this analysis is usually at the inception of the development. When the development is created, there is usually a written document (i.e “Declaration”) recorded in the deed records which addresses the relationship between the developer and the owner of the golf course property. This document may discuss the maintenance duties of the golf course owner and impose a duty to maintain the golf course consistent with community standards. The definition of community standards may vary; however, it generally means those standards of aesthetics, appearance, architectural design and style, maintenance, conduct and usage generally prevailingwithinthepropertiesingeneral,andwithineachneighborhoodinparticular. Thisinsuresthatthe developer can build homes on lots that are surrounded by a well-kept golf course. The enforcement rights under the Declaration usually pass to the Homeowner’s Association (“HOA”), as successor. As such, the HOA may enforce rights concerning this obligation.

Homeowner deed restrictions may address the obligation of subdivision golf course owners to maintain the golf course property. Specifically, maintenance funds may be created whereby homeowners are required to put money in a maintenance fund to help fund golf course property maintenance. Under such circumstances, homeowners may have the right to enforce unsatisfied maintenance obligations that were not paid from such maintenance funds.

In addition to the express covenants referenced above, the law may impose implied covenants on the golf course owner to maintain the golf course. Specifically, most homeowners who live in a golf course community are burdened with deed restrictions which require them to use their property and maintain it consistent with golf course use. Fence height requirements, setbacks, etc. are all in play for lot owners. So, lot owners are required to maintain their homes consistent with these golf course use related deed restrictions to facilitate a premium golf experience, and the golf course owner is not burdened with a similar or “reciprocal” obligation to use his property and maintain it according to community wide standards? The general scheme and plan (i.e golf course community) established by the developer often mandates the imposition of such implied reciprocal negative easements. In other words, the court will impose mutual burdens on both parties.

In addition to the above, if the condition of the golf course is exceedingly poor such that it causes devaluation to the member’s homes, the golf course owner may be held liable for damages due to their violation of Texas private nuisance laws. Under Texas law, a nuisance is a condition that substantially interferes with the use and enjoyment of land by causing an unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. A number of factors are considered in analyzing a nuisance claim, including the character of the neighborhood, the parties’ land usage, the location of the land, the magnitude, extent, degree, frequency, or duration of the interference, and the interest of the public and community at large. Illegal nuisances can be committed through intentional acts, negligent acts, or through strict liability when the perpetrator engages in dangerous activities. Remedies available for unlawful nuisances include money damages and injunctive relief. If a nuisance is deemed to be temporary, the damages available are lost use and enjoyment that has already occurred. However, if the damage is permanent, the owner can recover lost market value of the property.

Moreover, there are public nuisance laws (Health and Safety code) and local ordinances which may offer homeowners the right to bring an injunction action to address the illegal nuisance. Such laws allow the recovery of legal fees and court costs.

In sum, there are ways for homeowners and HOA’s to require subdivision golf course owners to properly maintain their land so that it is a positive reflection upon the community at large. These methods vary depending on your particular jurisdiction.

Mr. Kornhauser is a Texas board certified civil trial lawyer whose practice specializes in land use issues, particularly those relating to golf courses and related lands. Mr. Kornhauser may be reached at kornhauser@hooverslovacek.com.

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