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GOLFBALL RAIN OF TERROR : covenant-consented vulnerability resumes- LIU v HAMPTONS GOLF Alta 2018/03/23 15:10  
The Alberta Court of Appeal has overturned a permanent injunction obtained 12 months ago by a CALGARY ALBERTA homeowner against ERRANT GOLF BALLS from a course next door.

( Addendum : This decision is cited in May 20/18 Out of Province topic “GOLFBALL RAIN OF TERROR # 2 - even tougher to halt GOLFBALLS FROM YOUR OWN STRATA ( B.C.) )

Despite whatever - if any - diligence Ms Jiamei Liu may have applied before buying in 2014 into a ( then ) 19 year old Building Scheme built around Calgary's HAMPTONS GOLF COURSE, she eventually developed buyer's remorse about the covenant-consented exposure to ERRANT GOLF BALLS.

( What's a "Building Scheme" ? See below to be added )

Ms Liu & the other (servient) burden-accepting neighbours had contracted on title to accept, waiver, indemnify - even TO INSURE ! - a shockingly one-sided array of GOLFCLUB FRIENDLY exposures to errant golf balls.

Those had been set up on Calgary property titles in 1995 by the Developer common to both her own residential Building Scheme and to what became the Hamptons Golf Club.

Did Mrs Liu buy midwinter at 2 am ?

Did she fail beforehand to notice a sufficient proximity to the Hampton's 10th Hole ? Notice such that by April 2016 she would be shrieking about 150 balls or more per year hitting her backyard ? ! Did they only start dropping after she agreed to purchase ?

She tells Global TV in 2017 she is being hit disproportionately. And she apparently tells Global she doesn't want to look at mesh netting installations either !

Whatever, without serving legal notices to her residential neighbours - some arguably golfers happier to have course views uncompromised by protective mesh netting than worrying about Mrs Liu's backyard safety - she seemed to find a chink in the armour.

Ms Liu was able to persuade a judge to issue interim & later permanent injunctions on the grounds of UNSAFE PRIVATE NUISANCE. ( Global TV May 15/17 injunction/ )

Those ordered - despite the stacked covenants on title grotesquely favouring the Hamptons Golf Club activity - full shutdown of the Club's 10th hole unless reconfigured and/or otherwise altered so as to halt the alleged private nuisance danger. BUT . . .

In September 2017 Alberta's Court of Appeal however overturned the injunctions.

Remitting the dispute to lower court, they appear to be nudging the disputants - with now-ordered input of the other affected Building Scheme properties - to compromise.

If accepted by view-sensitive neighbours, a compromise might - MIGHT - involve the Hamptons Golf Club at its expense gratuitously erecting high, protective mesh barriers on its own property as previously offered to - but rejected by - Mrs Liu.

The ongoing barrier logisticals & impairment of views, may leave a lot of angry shouting still to be heard before this dispute ends or recesses. Mesh doesn't stop all balls. Climate & age etc deteriorate it. Its supports can impair views. Trees take time to grow, impair views, maybe don't protect well . . So this dispute may have legs. . . .

Some takeaways :

1 - Can covenants - running with Building Scheme property titles - trump civil liability for private nuisance damage ? Should covenants be upheld if they indemnify significant injury, property damage or sterilization of residential uses ?

2 - For buyers, is it a good idea to ignore or to forego competent PRIOR professional diligence ?

Lacking LEGISLATED CONSUMER PROTECTIONS like "reasonableness" . . . like compatibilty with a dedicated Provincial statute purporting to be consumer protection legislation . . . like the arguably shaky vulnerability of "Public Interest" & "Fair Play" . . . are these the sorts of risks about which consumers should be careless or cheap or stupid ?

I live in a comparatively benign modern Ontario Building Scheme. BUT what Building Schemes MIGHT DO - and have too often done elsewhere - fills me with dread . . . .

So to further buy into a Golf Course community with grotesquely one-sided covenants favouring wide-open golf . . .

* * *

Liu v Hamptons Golf Course Ltd., 2017 ABCA 303 issued Sep 22 2017

ABCA injunction's dialogue here gets discussed subsequently already in ( Worshippers at War ) Bruderheim Community Church v. Board of Elders of the Canadian District of the Moravian Church In America, 2017 ABCA 343

and ( junk war “Stoned or Drunk, We Will Haul Your Junk” ) Janot v Janot, 2018 ABCA 20
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