Pokémon Go is a free mobile video game that is taking the world by storm. Pokémon Go was released on July 6, 2016 in the United States and has already has more than ten million downloads. Pokémon Go is different than many mobile games as it allows players to capture, battle and train virtual creatures called “Pokémon” who appear on mobile device screens as though they existed in the real world. Pokémon Go makes use of the GPS and camera in a mobile device and requires players to travel to various locations, which may include homes or common areas in condominium or a subdivision. Proponents of Pokémon Go claim that it has health benefits as it allows children and adults that play Pokémon Go to exercise and get fresh air while they are engaged in fun family activity. However, while Pokémon Go may be a healthier version of a video game, it does create new issues for condominium associations and homeowner associations. Thus far, Pokémon Go players have crashed a car into a tree and walked off a cliff as a result of not paying attention to their real world surroundings. In another case, a private property owner shot a gun at Pokémon Go players mistaking the Pokémon Go players as criminals. Given the potential mishaps that have thus far resulted from Pokémon Go, condominium associations and HOA’s should be prepared to deal with the new issues presented by Pokémon Go players that may be wandering around their projects.
Can community associations stop third parties from entering onto private property to play Pokémon Go?
In the context of a condominium association or homeowners associations, many Pokémon Go players that have no relation to a community association may attempt to enter onto common areas such as roads, sidewalks, greenspaces, pools or clubhouses. In some cases, Pokémon Go players may also attempt to enter onto yards, driveways, take pictures of condominium units or individual homes. In instances where the Pokémon Go player(s) has no relation to the community association, the community association has several options.
First, as a practical matter, a community association board can simply file a request to have a certain location removed from the Pokémon Go game at the Pokémon Go support page and report an issue with a gym or Pokémon stop. While there is no guarantee that the location will be removed, this is an easy and practical initial step for a community association board to take to try and resolve a Pokémon Go invasion.
Second, if removing the location of a community association from Pokémon Go does not resolve the issue, the common areas of a condominium or subdivision are often private property that is administered by the community association. Third parties that do not have a legal basis for being on private property may qualify as trespassers. In serious cases where third parties ignore warnings to leave, or continue to come back, a community association board could file a civil action to obtain an injunction preventing trespasses or call the police to see if they will remove the trespassers.
Given the issues thus far caused by Pokémon Go players that forget their real world surroundings, it is recommended that a community association board take some action to prevent third-party trespassers in the common areas. Third-party trespassers not only pose a nuisance to the owners, but also create safety hazards and additional liability issues for community associations. Accordingly, a condominium association or HOA should not sit idle when it learns of continued trespasses by Pokémon Go players that have no relation to the community and ignore a friendly request to leave the premises.
Can you stop co-owners, invitees, guests or renters from playing Pokémon Go?
While community associations certainly have an interest in preventing trespassers from playing Pokémon Go in common areas, they must also be mindful of regulating co-owners, invites, guests or renters. As an initial matter, a condominium association or HOA should review its existing bylaws to determine whether it currently has restrictions in place regarding use of the common elements or whether it has the ability to make rules and regulations regarding the use of the common elements. In many instances, if Pokémon Go players get out of hand, condominium bylaws contain provisions that preclude a co-owner, renter or a guest from causing a nuisance, obstructing the common elements or engaging in activity that increases the rate of insurance.
While the above types of bylaw provisions provide broad power to a community association, a condominium association or homeowners association would be best served to create a specific set of rules and regulations that relates to Pokémon Go if it is becoming an issue for the community association. By way of example, a condominium association or homeowners association may wish to restrict certain locations where Pokémon Go is played, the time of day that is played, etc. This is not only important from a nuisance perspective, but also from a safety perspective as a co-owner or guest could easily walk off the ledge of a retaining wall or fall into a retaining pond if they are not paying attention. However, when creating rules related to Pokémon Go a community association should be mindful of the federal Fair Housing Act, 42 U.S.C. § 3601, et seq. The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities . . . because of race, color, religion, sex, familial status, or national origin.” Accordingly, any rules related to Pokémon Go would need to apply to allow co-owners and should not be targeted at children.
While Pokémon Go may be the most popular video game in recent history, and it certainly has benefits, condominium associations and homeowners associations need to be prepared to deal with issues relating to nuisance, trespass and safety concerns that come with playing Pokémon Go. Community associations should be vigilant when it comes to protecting trespassers on private property. Community associations should also make decisions as to whether co-owners, renters or guests will be allowed to play Pokémon Go in common areas. If a community association does allow for Pokémon Go to be played, it should evaluate whether it needs to amend its bylaws or adopt reasonable rules and regulations relating to Pokémon Go.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or firstname.lastname@example.org.