Re: Homeowners Beware
First, as an attorney with HOA experience, your Home Owner's Association most probably stands on firm ground with not acting on the matter. However, this is a matter of the covenants and declaration of the HOA as to whether it is within the ambit of their responsibility.
Second, the situation you describe may not be fair and the response by the golf course may not be proper. But this is a matter of degree and based in fact and context.
Here is some of the law on this matter.
1. Homeowners bought a home adjacent to a golf course and during the tenure of their residence experienced golf balls landing on their property on a daily basis. Some of the errant golf balls nearly hit the homeowners and others damaged their property. Homeowners sued the golf course, seeking damages and an injunction for nuisance. Trial court entered judgment for the golf course on the ground that homeowners did not establish that a nuisance existed. The court stated that homeowners came to the property with the knowledge that it was next to a golf course, which put them on constructive notice that golf balls would be landing on their property.
2. The law relating to private nuisance is one of degree. Whether the use is unreasonable or not is an inference to be drawn from all the facts. Determination whether something, not deemed a nuisance per se, is a nuisance in fact in a particular instance, is a question for the trier of fact.
3. Actions that intentionally fail to do an act which is a duty to do, knowing or having reason to know of the facts which would lead a reasonable man to realize, and not acting upon them may create a liability to the party who is injured.
In your case, the question is one of fact and is whether there is a reasonable basis of action that the golf course can take to avert such damage. Other questions are (i) was your house built prior to the golf course? (ii) did you buy knowing the golf course was there?
Your case is one of a factual inquiry into the conduct of the gol course, knowledge of the risk created to others or their property, and whether such creates an unreasonable risk of physical harm to others or their property. Essentially, this is a matter of what the golf course has done to address the matter and, based on your response, they have not taken appropriate actions. Per your question, you appear to be located within an area adjacent to the course that is not subject to errant golf balls and for which the golf course could possibly control.
Contact an attorney for advice and possible actions. I am available if you would like to pursue the matter.
G. Joseph Holthaus
(410) 799-9002
