Q: We rent a single-family home that’s adjacent to a municipal golf course. Unfortunately, along with the views we get a daily barrage of golf balls. They fall in our yard, have dented our car and broken two windows, and I’m afraid to use the pool before sundown. Since we moved in six months ago, I’ve collected more than 100 balls. I want to break the lease and move, and I’m wondering if I have any legal grounds to do so. –Jack N.
A: It’s a safe bet that most people, including a judge, would agree that the conditions you describe are more than trivial annoyances and make living in your rental unpleasant and downright unsafe. But this doesn’t necessarily mean that you’ll be able to break the lease without responsibility for the balance of the rent. That will depend on a number of factors.
First, did you question the landlord, before signing the lease, about the very problem you’re experiencing? If you raised the issue, and were reassured by the landlord that stray balls were not a problem, you have a good shot at convincing a judge (should the landlord sue you for the rent) that the premises were rented under fraudulent circumstances. Or, if the landlord told you, without being asked, that the golf course was well-designed, with minimal stray balls coming your way, you could have justifiably relied on this information when making your decision to rent.
Suppose the issue never came up — everyone looked at the grass and the trees, and never mentioned the golfers. Some people would argue that you should have known, given the proximity of the course (and evident lack of fencing), that balls might make it onto your property. Under this argument, by renting anyway you assumed the risk that balls would fall, and should not now be allowed to wiggle out of your decision.
Some homeowners, faced with similar problems, have argued that the constant intrusion of golf balls amounts to a continuing trespass, by the golfers themselves or the course (usually a country club). Country clubs that also sell homes have turned to their lawyers for creative solutions, such as inserting clauses in the purchase agreements that give the course an easement, or right, to subject the homeowners to intrusions that may result from golf course activity. A homeowner who in turn rents the home to a tenant might also use such a clause, but it’s unlikely that you’re dealing with one.
You might want to look into whether a real estate broker, representing the seller of a home subject to significant golf ball bombardment, would have a duty to disclose this fact to a potential buyer. If so, you may be able to argue by extension that a landlord has a similar duty.
Q: Several years ago, longtime tenants of our single-family house asked us if they could erect a shed in the side yard. We said yes, provided they removed it when they left. But when they moved out last month, the shed was still there, and the tenants are demanding that we pay them for the value of this structure. We never wanted it, and in fact, it’s in the way, and shabby. Do we have to pay them — and if not, can we charge them for the cost of removing it? –Bob and Kathy B.
A: Your tenants are relying on a legal doctrine known as "unjust enrichment." If you refuse to pay them and they take you to court, they’d have to convince a judge that having the shed on the property is beneficial to you, and that you’ve accepted the benefit in a way that would make it unfair for you to not compensate them. Importantly, they’d have to show that the shed had value to you, which is different from its value on the open market.
It doesn’t sound like your tenants would prevail. You never gave them reason to think that you wanted the shed, and unless you actively prevented them from removing it, you’ve done nothing to contradict your initial requirement that the shed leave when the tenants did. Your tenants are what’s quaintly called in the law "officious benefactors" — persons who thrust a benefit on others, then demand to be compensated. This the law will not do.
You’d be within your rights to demand its removal and charge your tenants for the cost of removing it if they refuse. Many states have rules governing how landlords must treat abandoned property — typically, you must notify the tenants of the problem and give them an opportunity to reclaim the property. If they don’t pick it up, you may either sell it or dispose of it as you choose. You’re entitled to charge the tenant for the cost of storage and disposal.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
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