Trespassing Pokémon

Because history is cyclical, Pokémon is once again a relevant craze that many young people are playing. However, unlike previous Pokémon games this one is played in the great outdoors.

For those of you that have somehow missed the release of the new Pokémon game, Pokémon Go, it is a phone AR game, in which you walk around in the real world going to various real world locations to receive in game benefits. However, during the exploration of the real/digital world, you will encounter Pokémon that you can catch in the game. However, these Pokémon only exist in certain real world locations throughout the world where the game’s developer places them for a period of time.

As a result of both aspects of the game, a lot of home owners are experiencing a tremendous amount of trouble with the game as people are trespassing onto their property to either get to a local point of interest to receive an in game reward, or more commonly, to catch Pokémon.

If you are one of the homeowners that are affected by this game, it is very understandable why this game would annoy you so much. You see, each individual that goes on to your property without consent is trespassing, but in order to enforce it you would have to sue each individual person. Unless there was a way to pursue the developers of the game there is no real remedy to stop the continuous trespassing from occurring.

The reason for this is because the claim of trespass can only be against the person that committed the trespass. In order to succeed on a civil trespass, claim you must establish that:

You had possessory rights over the property and

The defendant intentionally/recklessly, or negligently (note: intentional means that they intended to cause the movement that led to them going onto your property, not that they intended to illegally enter your property) entered your property without permission.

But, because the developers did not enter your property you cannot pursue them for trespass.

However, there is another cause of action you may bring—nuisance. Civil Code section 3479 dictates that to succeed on a nuisance claim you must show that:

You had possessory right to the property,

The defendant, through action or inaction caused or permitted a condition that was harmful to health, indecent or offensive, an obstruction to the free use of property so as to interfere with the comfortable enjoyment of the property, or unlawfully obstructed the free passage or use of the property; and

The condition interfered with your use or enjoyment of the property and you did not consent to the condition.

Notice that unlike nuisance there need not be an entering onto your property for you to succeed. In fact, you just need to show that the condition created by the defendant interferes with the comfortable enjoyment of life or property and that interference caused interference with the use or enjoyment of your property. Well, if you have people trampling all over your lawn at all hours of the night to catch a Pokémon, it may be fair to describe that as a condition that the Pokémon Go developers created that is directly interfering with your use and enjoyment of your property. As a result, it is possible that you are in such a situation, you may be successful in winning a nuisance claim and stopping anymore Pokémon related activities from happening on your property.