Rain City Guide

Golf Balls

Russ Cofano on 02 16, 2006

Ok, this post is really not about golf balls but they are part of the story. A recent case illustrates how courts are putting more obligations on buyers of residential property to understand the condition of the property notwithstanding the seller’s customary obligation to provide a disclosure form to the buyer.

This case involved a buyer who was purchasing a house on a golf course. I can already hear you thinking that anyone who buys a house on a golf course surely knows that one thing follows: errant golf balls. The seller did not consider errant golf balls being a problem and therefore did not disclose them in the property disclosure statement. Although they fell into the yard with some frequency during the summer, he did not remember that they caused damage to the house, his family or even their dog. When buyer first viewed the house, he noticed a ball in the street and even inquired as to “whether the balls fly here.” According to the buyer, buyer’s agent said “she didn’t know. Maybe.” Buyer did not do any further investigation and closed the deal.

Well, you guessed it. Buyer moves in and in his opinion, golf balls are raining down on him. He sues everyone including both listing and selling agent (typical in misrepresentation cases). Unfortunately for buyer, the court found that the issue of errant golf balls may not have warranted disclosure but that even if it did, buyer waived disclosure of the problem when he saw the golf ball in the street and failed to investigate further.

What does this tell us? First, if you don’t like dodging golf balls, don’t live next to a golf course. Duh! Seriously, it tells us that as a buyer, you need to pay attention to what you see on (and off) of the property. If there is anything that remotely creates concern in your head about something that may be important to you, you MUST investigate. Disclosure statements are great but they are not insurance policies. This case illustrates that notwithstanding seller’s obligation to disclose material facts, buyers cannot sit idle in the face of visual information and expect the law to protect them.

Who won in this case? The lawyers. Seller, buyer, listing agent and selling agent (and their brokers) all had to spend time and money dealing with this law suit. Everyone of them bear some culpability. Seller could have disclosed the fact that at times, golf balls become a nuisance. Listing agent could have inquired about this issue and advised the seller that such disclosure, while maybe not legally required, might be a risk reduction technique against a future suit by the buyer. Selling agent could have asked more probing questions about whether errant golf balls might be something important to the buyer that needs further investigation. Of course, buyer could have been more diligent about his own wants and needs.

This is too often the case in misrepresentation cases. My guess is that the parties in this case learned a good lesson and will do things differently next time.

-Russ

About the Author: Russ Cofano

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