Pokémon Go has taken America by storm.
But if you're perhaps one of the few people who haven't heard yet about the popular video game app that has been in the news recently, here's a refresher: Pokémon Go lets smartphone users explore their cityscapes, capture adorable-but-wild monsters in prison balls, and then unleash them at each other to fight until comatose.
While the game has become a craze of sorts, there are a couple of things to consider. For instance, could there be any safety issues therein as pertains to the app's use in condominiums, cooperatives, or homeowner's associations? And could there potentially be cause for a board to regulate use of the app, should it be found that the game is responsible for people to mill about a property at all hours or non-residents to trespass—all in pursuit of some elusive critter?
Get Off My Land
"For entrepreneurs and businesses looking to attract customers, there might be some opportunity to capitalize off this phenomenon; to attract traffic or customers," postulates Matthew J. Leeds, a partner with the Manhattan-based law firm of Ganfer & Shore, LLP. "But for residential condominiums and co-ops, there is none of that. To the extent that non-residents will be pursuing these animated characters and feel compelled to enter a property, residents, doormen and staff should just treat these people like any other uninvited guest or trespasser, and exclude them."
Jeff Singer, CFO of Solstice Residential Group, LLC in Manhattan, concurs: "The game is great for business, but not so much for communities seeking isolation. The three basic elements to the game all arguably encourage trespassing and loitering. Walking around chasing Pokémon can lead the user to property that is off-limits, and sometimes people don't respect that. We're seeing it in cemeteries, police stations and other cultural sites. In Manhattan buildings, however, it's not as much of an issue, because you can access anything game-related from outside of a property via your in-app avatar's radius. But on a larger property, you may need to drive onto the grounds to access something, and people may be encouraged to do so even if they knowingly do not belong there."
"There are also in-game items called 'lure modules,' which attract Pokémon to a user's location for one half hour," continues Singer. “And people will just stay put that entire time. Then there are gyms, where players wage battles with their Pokémon. That can take anywhere from a few minutes to ten or more. And if they're on a private property wherein people need to go inside the ground to access it, they're just going to stand there like zombies, pressing buttons over and over again."
Of course, just because an obvious marketing angle has yet to emerge in regard to what Pokémon Go can do for co-ops and condos doesn't mean enterprising capitalists won't try everything.
"I recently read something about [real estate] brokers putting language in ads encouraging people to come tour a unit in their efforts to catch Pokémon," says Marc H. Schneider, a partner with the law firm of Schneider Mitola LLP, with offices in New York City and Garden City, N.Y. "Although, if I remember correctly, the article noted that only one or two people showed up to the open house specifically in connection with the Pokémon promotion."
That said, with bars and retailers already looking for ways to turn the app's popularity into boffo bucks, don't be surprised if it eventually permeates the residential real estate game as well.
While a sweeping rewriting of the bylaws and house rules seems both unlikely and unnecessary due to the popularity of a mobile game, injuries, robberies, and general tomfoolery have resulted directly from this craze, and a board would be well-advised to take precautions.
"If users are playing within the building or property in which they live, there might be some concerns about injuries, such as if the player is eying the screen while walking on stairs," says Leeds. "It's similar to a building limiting children playing tag on the roof."
"A board should ask its managing agent if the company has a policy or suggestion that might apply to this," Leeds continues. "If Pokémon Go in particular is perceived as a risk, or there is a concern, perhaps a board can also ask the insurance carrier in writing if it feels that a note should be sent to unit owners, warning those who play to be careful. If this is a real independent concern that is not already categorically addressed by other obvious broader rules or limitations (i.e. don't run on the aforementioned roof), perhaps management could distribute a note that the building asks the game not be played on the premises, especially in open areas."
And while some mild steps may be prudent, Adam Finkelstein, a partner with the Manhattan-based law firm of Kagan Lubic Lepper Finkelstein & Gold, LLP, suggests that it may be premature to make any big leaps in judgment. "Many existing rules can likely be implemented should buildings face issues here," he explains. "Noise restrictions can certainly be employed when kids are wandering the halls, playing in groups. And restricting access to certain common areas that are already on the books can be looked to when the game has people wandering into otherwise restricted areas like roofs, gyms or community rooms. Obviously language restricting loitering in lobbies and interfering with staff duties are already found in the governing documents of many buildings."
David J. Byrne, a partner with the law firm of Ansell Grimm & Aaron, P.C., which has offices in White Plains, N.Y., New Jersey and Pennsylvania, said he is not an admirer of HOAs who are preoccupied on the precise actions of owners and devise rules that are likely unenforceable. He raised a question of how the association would be able to ID the gamer in order to enforce a regulation linked to the Pokémon Go game.
So the lesson here appears to be "wait and see." As these augmented reality games gain popularity, their influence on culture and public safety will become more apparent. But for the time being, encouraging caution among residents may well suffice.
Mike Odenthal is a staff writer for The Cooperator and other publications.