After what seems like decades of hibernation, Pokémon has reclaimed
the throne it once held a top video game and pop culture. What began in
1996 as a hand-held video game, generally keeping its players confined
to a single location, has evolved (pun intended) into the fully interactive
mobile device app known as “Pokémon Go”. Rather than
keeping players indoors like other video games, Pokémon Go players
are sent out on actual scavenger hunts to catch and collect “Pokémon”.
To do so, players must travel to different locations including parks,
churches, and in some cases, within the confines of HOAs. While this unique
game has received well deserved praise for its ability to get people off
of their couches and out into the real world, there have also been complaints
that the game causes its players to trespass and create nuisances. With
respect to HOAs, Pokémon Go players may seek to enter their common
areas including parks, sidewalks, or pool areas. They might even be tempted
to enter private areas like yards or driveways. HOAs should therefore
consider the impact the game can have on their communities and be prepared
to control potential problems to the extent they can.
Of course, players using the app that are not affiliated with the community,
can always be asked to leave the property. If they fail to leave, the
community is permitted to take legal action against the trespassers.
Additionally, HOAs can demand that locations within their communities be
removed from the game. This can be done by visiting Pokémon Go’s
Support Page and selecting “Report an Issue with a Gym or Pokéstop.”
While this seems like a simple and effective solution, several homeowners
and HOAs have complained that their demands are simply being ignored.
This has resulted in a growing number of lawsuits filed against Pokémon
Go Developer, Niantic Inc. Many of these lawsuits have consolidated into
a single class action in the Northern District of California known as
“In re Pokémon Go Nuisance Litigation”. These actions
include a putative
class action lawsuit originally filed by a Florida HOA on September 2, 2016.
The plaintiffs seek nationwide class certification for all owners of private
property on which Pokéstops have been placed without permission.
While this suit is still in its very early stages, it will be interesting
to monitor whether the claims for nuisance and unjust enrichment hold
 The Villas of Positano Condominium Association, Inc., v. Niantic, Inc. et al