Of Condominium Associations and Pocket Monsters (Pokemon)
By: Paul C. Schultz, Esq.
During Summer 2016, the Pokémon GO game for smartphones took the world by storm – leveraging novelty and nostalgia to get millions of Americans up off the couch and out of doors in ways that create important legal issues for condominium associations and other owners of real property.
In principle, augmented-reality location-based smartphone games have been available for almost all Americans since Google’s Niantic Labs released its title Ingress in 2014. Augmented reality (AR) is a live view of a physical, real-world environment whose elements are augmented (or supplemented) by computer-generated sounds, graphics, or GPS data. Though we may have ignored augmented reality in 2014, it is now less possible to ignore AR because Pokémon GO has been released to the delight of millions of users of all ages. These users have already spent hundreds of millions of hours playing the game: collecting the titular Pockét monsters by wandering the streets of our cities, towns, and condominium developments.
Game players have spent all of these hours out-of-doors because AR games offer them (virtual) rewards for their efforts. By walking to the nearest statue or fire station or neighboring backyard in the real world, a player may be able to secure certain perks in the game’s (analogous) virtual world. Some of the game’s rewards are randomly scattered across the game’s global map, appearing to players by chance as they venture near them. Some of the game’s objectives are semi-permanently fixed in place – so that anyone who visits the related location in the real world can have access to those objectives. Niantic’s algorithms are responsible for the locations of many of these objectives. Other game objectives have been put in place by the actions or requests of a particular player of Pokémon GO. While a Board has no legal obligation to identify PokéStops or other game objectives on Association grounds, resources such as DarkHorseSki’s Pokemon Go map and the Pokémon Go Michigan Map Project can offer some assistance in making the inquiry. The best way to find out, though, is to play the game.
Working to satisfy objectives in the virtual world can sometimes result in consequences in the real world. Though the Pokémon GO game makers expressly direct game players not to trespass upon private property in the real world, presently available augmented reality maps are not yet able to distinguish between private property and public space in every instance. At least some game players have trespassed onto private property in the real world in pursuit of rewards that were randomly generated on that property in the virtual world, or were “placed” there by another player.
While the liability of Michigan property owners for injuries suffered by trespassers is somewhat circumscribed by MCL 554.583 – which limits the duty of care owed to a trespasser – it is still possible for a trespasser to sometimes recover damages against a property owner when the trespasser is injured while trespassing. This is particularly the case where the trespasser is a child “injured by an artificial condition on the land.” Augmented reality games are so new that no court has yet decided whether a property owner’s tolerating the placement of a “Pokéstop” on his or her private property is the same as permitting the continuation of the sort of “artificial condition” that the statute punishes – but there is reason to believe that a court could arrive at such a determination. For now, the law continues to presume that children are less familiar than adults are with the real world and the consequences of their actions within it.
If Pokémon GO players have become a menace to community life, a condominium association may wish to take steps to protect its members and their rights. In some cases, for example, the existence of wandering zombies may now justify amending condominium bylaws to prohibit a co-owner and his or her residents and guests from trespassing across the limited common elements assigned to another co-owner. Depending on the symptoms experienced, another remedy might be the adopting of rules and regulations preventing excessive noise in common areas or setting forth limited times each day when AR games may visit an association’s clubhouse, pool, or other shared amenity. Boards should be warned that any regulation adopted must treat all condominium residents equally; under Fair Housing laws, it is not legal to target enforcement on minors alone.
In addition to the promulgation of rules and regulations, some association may be able to physically close off common areas that seem particularly susceptible to problems arising from AR game play.
Even if there were no increase in trespassing, greatly increased use of public and semi-public spaces can have legal ramifications for property owners like condominium associations. If a thousand teenagers now walk across a broken section of association sidewalk each week in search of Pokémon that randomly appear in the analogous, virtual world, the chances of slip-and-fall injuries are greatly increased as compared to when 10 teenagers a week made the same trip in the past. While Michigan’s announced public policy puts limitations on bringing slip-and-fall claims, it does not eliminate them entirely. It has always been the case that each condominium association had a duty to maintain its common elements. That duty continues to this day and should be acted upon so that the increased use of common elements by pedestrians does not result in increased injuries.
Niantic has made some efforts to facilitating opting-out by property owners who do not wish for there to be (virtual) Pokémon appearances on their private property. Any reader can learn more about this process on this Niantic web page: https://support.pokemongo.nianticlabs.com/hc/en-us/articles/221968408
Or, if it is easier, please type exactly this short-link into your web-browser – bit.ly/DeletePokemon – to visit Niantic, Inc.’s related web-page for submitting a deletion request.
Paul C. Schultz is an associate attorney with the firm. He has extensive experience in community association law, having been with the firm since 2009. Paul’s expertise in community association law includes collections, developer litigation, construction defects, appellate work, and legislation. He also has significant experience in real estate transactions.
You can reach Paul at our Plymouth office at 734-459-0062 or via email at firstname.lastname@example.org.