Insights

The game took the world by storm this summer as animated creatures began appearing in the most unexpected places has fueled debate on land rights, the legal boundaries of private property, and what constitutes trespass.

"Pokemon Go" by Nintendo has created an arising question: What is the line between virtual reality and property law?  As the land owner, do you control the virtual space of your property or do your land rights only apply when something or someone is physically on the property?

What are my rights as a landowner?

In the United States certain properties, such as Washington's Holocaust Museum and New York's Sept. 11 memorial, have ended up as default locations for key spots to keep gamers moving further in the game.  What happens when your backyard becomes a popular spot?

Trespassing as it relates to real estate law means entering onto land without the consent of the landowner.  As with many laws, there has to be a measure of intent.  The trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission.

As a landowner, he or she will be liable for any injuries caused by an unsafe condition on the property if:

• the condition is one the owner created or maintained;
• the condition was likely to cause death or serious bodily harm;
• the condition was such that the owner had reason to believe trespassers would not discover it; and,
• the owner failed to exercise reasonable care to warn trespassers of the condition and the risk presented.

In the case of children who wander onto property without authorization, property owners do have a duty to ensure that their property is safe. These potential hazards are referred to as "attractive nuisances", such as swimming pools. A property owner may be liable for an injury to a trespassing child if he/she knew, or should have known:

• young children were likely to trespass in the area of a dangerous condition on the property that involved an unreasonable risk of bodily harm to children;
• young children would not be aware of the risk; and,
• the utility of the condition is small compared to the risk it represents.

Do I have a case in court?

Determining if there is a potential case against a game creator is still a little fuzzy. At the moment, one needs to 1.) prove physical harm done to them or their property and 2.) be able to link that action directly to the company that created the game.

At the beginning of each game, Pokemon Go instructs players not to trespass on private property, which means while a player who trespasses could potentially be prosecuted, the company itself can't.

As the quest to catch rare Pokemon characters continues, laws will need time to evolve making it hard to predict the outcome of cases.