Commercial property issues to consider when selling your business
Pokémon Go has caused headlines around the world since the augmented reality game was launched in the summer. Most have not been positive. A woman in the US is reported to have found a dead body while playing the game. Players have been lured to remote places and robbed of their phones, in one case at gunpoint. And there have been countless injuries caused by people tripping over or in car accidents as the addictive nature of the game distracts people from everyday tasks.
Another big issue has been trespass. For those not familiar with the game, you play Pokémon Go by walking around (in the real world) catching virtual monsters identified by your smartphone using the phone’s GPS.
Some of the game’s locations are on private land. This is no deterrent to zealous players and it has led to some unhappy landowners. A class action lawsuit by property owners in the US against the game’s makers is claiming damages in excess of $5m for ‘flagrant disregard’ of the impact of the game on real places.
We haven’t yet heard of any legal actions in the UK though concerns have been raised by farmers. The Country Land and Business Association has received several reports from its members of players trespassing on their land.
What are your rights as a landowner if you have a ‘Pokestop’ or Pokémon Gym located on your land?
The most obvious point is that it is a trespass to enter land belonging to someone else without their consent. This entitles the landowner to make a claim for damages and/or an injunction against someone who does so.
The nature of the game means players are unlikely to return to a spot more than once so in practice a claim for damages in unlikely, unless the trespasser causes physical damage to the property. There are also practical issues. How will you identify the trespasser? What if the trespasser is a minor, as many players are?
Can you obtain an injunction to prevent anyone from entering your land?
There have been cases where ‘persons unknown’ injunctions have been granted to protect premises from nuisance or trespass. These have mostly been used against protest groups. For example, in 2013 the National Farmers Union obtained an injunction to restrain animal rights activists from protesting against a badger cull.
A claim would have to be based on the grounds that a definable group of people (Pokémon hunters) could cause injury to people on your land or to your property by entering it in order to play the game. It would be interesting to see what attitude the courts would take if such a claim were made.
Could an action succeed against the game’s makers, Nintendo?
This is unlikely. The game contains disclaimers and discourages trespass in a similar way to providers of car satnavs.
What practical steps should landowners take?
Landowners should take steps to secure access to their property in order to prevent entry. They should consider erecting a sign warning the public that entering the land constitutes a trespass.
They should also be mindful of the fact that landowners have a duty to ensure that their property is safe. They owe a duty of care to people who enter their land, even trespassers.
If someone does trespass on their land, landowners should tell people they are trespassing and call the police. Trespass is a civil matter not a criminal offence but this is not the case if the trespass involves criminal damage or a breach of the peace.
Conclusion
Will the Pokémon Go craze last, and if so, will it lead to a raft of trespass and nuisance claims from disgruntled landowners? Only time will tell, but watch this space.
If you have any questions about trespass and Pokémon Go, please contact Leigh Nielsen at Leigh.Nielsen@bracherrawlins.co.uk
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