Archive for the 'Real Estate' Category

Pokémon Go Away: Property Owners Suing Pokémon GO

The phenomenon that is Pokémon GO has swept the nation and the world. However, as this blog has addressed in the past, the way the game works has the potential to draw many different kinds of legal liability.  Less than a month after its release our predictions have come true, the companies behind Pokémon GO—Niantic, the Pokémon Company, and the Nintendo Company—have been slapped with a class action lawsuit.

Pokémon GO is an augmented reality game. Players walk through the real world and find Pokémon that appear in random locations throughout the world.  In order to catch Pokémon, the players must walk within a 40-meter radius of the Pokémon’s GPS location.  The game also includes “PokéStops” and “Pokémon Gyms” which allows players to gather resources or asymmetrically battle other players so long as they are within that 40-meter radius of its location.  Players can even use resources earned in the game to apply a “Lure” to a Pokestop—making Pokémon (and eager players) come to that location.

The lawsuit, brought on behalf of New Jersey personal injury lawyer Jeffrey Marder, alleges that Pokémon GO creates a nuisance and unjustly enriches itself through its use of private property as locations for PokéStops, gyms, and Pokémon without permission from the owners.

The world of augmented reality games is a very new one, and full of new issues of law and fact. Both of the charges of this lawsuit raise new and interesting issues.

A Poké-Nuisance

A nuisance claim requires a showing of an unreasonable, non-physically invasive use of their property where the use substantially interferes with the quiet use and enjoyment of that property.

Non-physical invasions can include things like loud noises, pollution, vibrations, or excessive light. Here, the lawsuit argues that the invasion is the additional foot traffic of players coming to catch Pokémon and use PokéStops, the noise they make, and the occasional gamer walking up to your door and asking if they can come in and catch a Pokémon. Due to the fact that nuisance does not require a physical invasion, the fact that PokéStops only require people to come within a 40-meter radius does not prevent liability.  A PokéStops on or near your property would still suffice, so long as it created an invasion that could be called a nuisance.  So the question is, does this rise to the level of a nuisance? Pokemon Go 3

An invasion needs to fulfill several requirements before it is considered to be a nuisance. First, the invasion must be a foreseeable result of the actions of the person accused of nuisance. In this case, the goal of the PokéStops is to draw as many players as possible into the game.  Thus, it seems clear that people using the PokéStops that you place is foreseeable.  It also seems foreseeable that where a large group gathers around private property, their presence could be noisy and disruptive—although there is some argument as to how much disruption could be predicted.

The invasion must also be substantial—more than the usual noise off the street. This is a tough standard to break down, as it highly fact specific. Whether a specific PokéStop has actually created a nuisance might depend on exactly how many people were drawn to the PokéStop and what they did while they were there.

Finally, the invasion must be unreasonable. In order to determine this, the court looks at several factors—how bad the harm was, how long the harm went on, how hard it would be for the defendant to prevent the harm, and the value of the defendant’s conduct to society.  The balance of harms here would, once again, depend on the exact extent of what happened.  However, it probably wouldn’t take a great deal to outweigh the difficulty of not using these locations and the social benefit of a mobile game.

As it is, the actual harm that has been shown by Mr. Marder is pretty tame—maybe not rising to the level of a true nuisance.  However, augmented reality is new.  There is no case addressing whether placing digital landmarks on or around your property could be—by itself—a non-physical invasion of your property just like smoke or excessive light.

This nuisance case has some question marks moving forward, especially considering it contains never before addressed issues. However, it’s also notable that the lawsuit doesn’t bring a claim for trespass—a similar claim to nuisance but with a physical invasion of the property.  This is probably because any trespass that has taken place was done on the initiative of the players, not Pokémon GO.  Pokémon GO has a trainer guide which advises players to always respect the community and adhere to the rules of the real world.  Their terms of service require players to not violate the legal rights of others.  It’s unlikely that Pokémon GO would be liable for the trespass of their players.

Unjust Enrichment

The lawsuits second charge, unjust enrichment, is one of oldest concepts of law—people shouldn’t be able to unfairly get ahead at the expense of another without compensating the other person.  In order to establish a case for unjust enrichment you need to show just that, along with the fact that equity demands you be repaid for what was taken from you.  This issue is especially important in this lawsuit because it represents the majority of the potential for damages in this case.

The lawsuit argues that by using the private property for their games, they have increased the value of their game. They argue that, because they did not pay or even ask permission for this use, they have been unjustly enriched.

Whether this gives rise to a case for unjust enrichment hinges on one very important question.  A question that has not been addressed by the courts before and will change the future of augmented reality gaming.  Does owning property in “the real world” extend property rights to any digital, location specific, intellectual property elements that may be put on it?  If so, not only does the lawsuit have a strong case for unjust enrichment, it would make augmented reality gaming incredibly expensive to implement.  It would essentially force game developers would limit their games to public areas.

The Pokémon GO Lawsuit Going Forward

The lawsuit has already led to action by Niantic, they’ve issued an update with specific warnings not to trespass built into the game. They’ve also promised to be more transparent with the process of removing PokéStops, a function which has always been available.

It’s not surprising that they’re taking the lawsuit so seriously; the lawsuit seeks damages in excess of $5M—although it is not specific about what, if any, damages Mr. Marder has suffered—and an order preventing Pokémon GO from using private property without permission. An order like that would make it much harder for an augmented reality game to function, especially where nuisance law prevents you from even bringing players into the immediate vicinity of private property.

Augmented reality is new and it’s huge. This isn’t the last case we will see dealing with these issues.  For now, we’ll have to wait and see whether this case will change the landscape of these games forever.

Prince’s Supposed Heirs Fight Over His Estate

“When Doves Cry,” “1999,” “Little Red Corvette,” “Purple Rain” – Prince Rogers Nelson had a number of hit songs. Throughout his career as a singer, songwriter, record producer and actor, Prince amassed $300 million dollars.

It was a shock when Prince passed away suddenly on April 21, 2016 at the age of 57. The cause? An accidental overdose of opioid fentanyl. Fentanyl is prescribed by doctors for cancer treatment, but it can be made illicitly and is blamed for a spike in overdose deaths in the United States. It’s 25 to 50 times more potent than heroin and 50 to 100 times more potent than morphine. Prince had no known living children at the time of his death. Prince

Now, Prince’s $300 million dollar estate is being sought after by his six siblings and numerous others who claim to be his secret love children, his nieces and nephews, and even secret siblings. A Minnesota judge overseeing Prince’s estate narrowed down the wide pool of potential heirs ruling out nearly 30 claimants. The judge also ordered genetic testing for six purported family members.

What could Prince have done to avoid all this fighting over his estate?

What is Estate Planning?

Prince should have created an estate plan, and so should you.

You may not think that you need an estate plan, but if you own anything, including your car, home, other real estate, checking and saving accounts, investments, life insurance, and personal possessions, an estate plan is wise.

You probably have an idea of how you want to distribute your possessions after you pass away. An estate plan helps ensure your wishes are met by specifically naming whom you want to receive things you own after you die. An estate plan can either be in the form of a will or a living trust. A will provides instructions on how to distribute your belongings after you die.

However, any assets titled in your name or named in your will must go through your state’s probate process before they can be distributed to your heirs. In layman’s terms, probate is a legal process the court takes to conclude all your legal and financial matters after your death. It can be a long and arduous process, especially for heirs who are waiting to move on from the death of their loved one.

Because wills still need to go through probate, a living trust is preferred by most families and professionals. Unlike a will, the trust doesn’t die with you. Instead, any assets in your trust can remain in trust until your beneficiaries reach the age you want them to inherit. For example, if you die when your child is only five but you don’t want your child to be able to access your assets until your child is twenty-five, a trust can ensure that your child will have to wait another twenty years.

A trust is more expensive upfront than a will, but because a trust avoids court interference (ie. probate), most people prefer paying more for a trust than a will.

What Happens if You Don’t Have an Estate Plan?

Each state has its own laws, but a person who dies without a will or trust will have his or her estate distributed and determined by the state’s probate court.

Prince passed away in his home state of Minnesota. If you pass away in Minnesota without a will or trust, your property is distributed through probate via intestate succession. In Minnesota, your spouse receives the entirety of your estate after debts and taxes, unless the person who passed away (known as the decedent) has children who are not also the children of the spouse.

In that case, the spouse receives the first $150,000, and the balance is divided among the children. If the decedent has no spouse and no children, the closest living relative (such as the sibling) will receive the estate. This is why Prince suddenly has a number of people claiming to be his relatives, most of whom he probably never met during his lifetime.

Let Prince’s ordeal be a cautionary tale of what could happen if you don’t have an estate plan.

Massachusetts Foreclosure Bill that Creates Incentives for Speedy Foreclosures

In Massachusetts, the legislature is considering passing a bill that would require banks to be more responsible for the upkeep of foreclosed properties. The bill would require banks to post a $10,000 bond with each foreclosed property that would be used to maintain the property if the bank fails to do so. If passed, the bill will provide relief to taxpayers who currently pay the cost of keeping foreclosed houses safe and maintained.

Not surprisingly, the Massachusetts Bankers Association opposes the legislation. They argue that requiring banks to post bonds for foreclosed properties would increase the cost of borrowing to all banking customers.

How Do Foreclosures Work? In order to foreclose on a mortgage, the lender must first prove that the borrower is in default. After the lender contacts the borrower and attempts to resolve the default with the homeowner, the lender files a lawsuit with the court against the borrower. The purpose of filing a lawsuit is to obtain court approval to initiate foreclosure. Because the lender must go through court in order to initiate foreclosure proceedings, the process is known as judicial foreclosure. Zombie Home

Non-judicial foreclosures occur when the borrower signs a deed of trust which contains the power of sale clause. The clause enables the trustee to initiate a foreclosure sale without having to go to court. The trustee starts the non-judicial foreclosure process by recording a notice of default and election to sell. After a three-month waiting period, the trustee may publicize, post, and record a notice of sale. If the sale is not postponed and the borrower does not exercise his right of reinstatement or redemption, the property is sold at action to the highest bidder.

What Responsibility do Banks Have to Maintain Foreclosed Properties?

Banks are supposed to foreclose upon properties quickly, but that often is not the case. Most banks do not have the extra incentive in the form of a security deposit or bond, so taking several months or even years to re-sell the property is the norm.

Some states, however, have enacted similar legislation. Banks and lenders in Hempstead, New York have to post a $25,000 security deposit each time a home in the town goes into foreclosure. In 2014, New Jersey enacted a law that requires creditors to maintain vacant property during pending foreclosures. Unlike Hempstead, banks aren’t required to post a security bond. Instead, the banks are fined if they are found to have not adequately maintained the vacant property.

Why enact this legislation? Mainly to prevent zombie properties, or foreclosed homes that have become abandoned or vacant, from depreciating the values of neighboring homes. When a homeowner falls behind on the mortgage, the bank begins the foreclosure process, which includes kicking out the homeowner. Foreclosure procedures are long and arduous in most states. As a result, many banks let the property simply sit in a state of disrepair for months or years. The effect is that the property falls into a state of disrepair which depreciates the value of surrounding properties.

In short, most states don’t have requirements for banks to post security deposits to incentivize banks to speed-up the foreclosure process.

Are Security Bonds Posted by Banks a Good Idea?

The impact of foreclosures on the surrounding neighborhood is well documented. For instance, Mount Vernon, New York, lost a whopping $3.9 million in home value due to just 19 zombie homes in the area. Zombie properties along with bank and federally-owned foreclosed home have decreased property values in Monroe County, New York by as much as $11 million.

Massachusetts’s proposed legislation will help prevent foreclosed properties from sitting unattended and falling into a state of disrepair. What better way to encourage banks to quickly foreclose upon a property than to make them pay a security deposit? If the bank quickly forecloses on the property, they will receive their security deposit back. If they let the home become a zombie property, their security bond is cashed by the city to maintain the property.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

Alligator Attack at Walt Disney World: How Wild Animals Can Change the Claim

On June 14, 2016, Lane Graves, a 2 year-old boy, was dragged from the shallows of a lagoon near the Walt Disney World Resort. He was later found dead, after the alligator dragged him away from his family and killed the child. The attack shocked park-goers and families throughout the nation. Soon, the news was filled with stories of parents sharing pictures of their children playing at the exact spot where the little boy lost his life.

Since then, The Walt Disney Company has taken every step to show remorse, sympathy, and compassion for the Graves family and visitors. But despite good will and efforts to remedy the situation, Lane’s family has a possible cause of action against the Happiest Place on Earth.

But what is the possible cause of action, or claim, they can file? Most importantly, what does this mean for Disney and other landowners who may face the same problems? What does it mean for their guests?

A Strict Liability Claim

Under strict liability, an owner of a wild animal can be held strictly liable for any injuries or damages caused by the animal, even if the owner took precautions or was not at fault. Wild animals are considered abnormally dangerous and ultra-hazardous due to their very nature. Alligator

But, here Disney can argue that they do not own the alligators on their property. In fact, Disney has removed 244 alligators from 2006 to 2016. After the attack on June 14, they removed six more from the area. If the alligators return enough to be a “nuisance”, they are euthanized. So in this case, Disney does not want the alligators on their property and do not own them. So in the end, Disney cannot be held liable under a strict liability claim, but can only be held liable under a negligence claim.

A Negligence Claim

Under Tort law, the Graves family can sue Disney for failing in their duty to protect their guests from known, dangerous wildlife on property. To establish their claim, the Graves family will need to prove that Disney had:

  • a duty to keep the area safe;
  • they breached the duty;
  • the breach was the cause of the child’s death; and
  • the family suffers measurable damages due to the death.

While the analysis may seem obvious in cases like these, each aspect must be proven in turn. Disney World Resort is a commercial property, owned and operated by The Walt Disney Company. It invites people onto their land for a fee, and once they pay the fee, the guests are legally considered “invitees”, or more specifically “business invitees” or guests. The legal status of the Graves family is important, as it will determine the level of due care that Disney owes in the situation.

In this case, it is clear that the Grave family are guests of Walt Disney Resort. Disney did not put up adequate signs to warn guests about the real danger of alligator attacks. Their failure to put up proper signs should have been foreseeable to them that their guests may be hurt by an alligator, and that their guests would not have gone near or into the water if there was an adequate warning sign. Finally, it is undeniable that the Graves family suffered a terrible injury from the attack.

In this case, it is unlikely that Disney will be able to defend against a wrongful death claim from the Graves Family. But is it fair for Disney and other property owners to not face strict liability?

Landowners Get Additional Protection from the Law, So They Must Give Additional Protection to Their Guests.

As discussed earlier, landowners are held strictly liable for any injuries caused by a wild animal they own on their property. This includes pet tigers, lions, bears, and any other animal that is not domesticated. But it does not include wild animals that happen to roam the property.

The law was written with the understanding that wild animals are uncontrollable, especially animals that enter private property without knowledge of the owner. The law does not hold landowners responsible for the actions of a random, wild animal on their land.

But it does not mean landowners, like Disney, won’t face punishment for injury or death of a guest. The law declares that landowners like Disney have a duty to repair and correct known dangers, as well as a duty to reasonably inspect, discover, and correct unknown dangers in areas that guests are able to access.

What is “reasonable” is decided by the court, and it is often based on what the landowner is capable of doing. For example, Disney is a multi-billion dollar and they are known for exercising great control over the quality and safety of their parks. So the court may order Disney to do far more than an average landowner who also has alligators on their property.



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