Pokémon Go: What does your Condo or HOA need to know?

pokemongo-1200-x-682Pokémon Go is a free mobile video game that is taking the world by storm. Pokémon Go was released on July 6, 2016 in the United States and has already has more than ten million downloads. Pokémon Go is different than many mobile games as it allows players to capture, battle and train virtual creatures called “Pokémon” who appear on mobile device screens as though they existed in the real world. Pokémon Go makes use of the GPS and camera in a mobile device and requires players to travel to various locations, which may include homes or common areas in condominium or a subdivision. Proponents of Pokémon Go claim that it has health benefits as it allows children and adults that play Pokémon Go to exercise and get fresh air while they are engaged in fun family activity. However, while Pokémon Go may be a healthier version of a video game, it does create new issues for condominium associations and homeowner associations. Thus far, Pokémon Go players have crashed a car into a tree and walked off a cliff as a result of not paying attention to their real world surroundings. In another case, a private property owner shot a gun at Pokémon Go players mistaking the Pokémon Go players as criminals. Given the potential mishaps that have thus far resulted from Pokémon Go, condominium associations and HOA’s should be prepared to deal with the new issues presented by Pokémon Go players that may be wandering around their projects.

Can community associations stop third parties from entering onto private property to play Pokémon Go?

In the context of a condominium association or homeowners associations, many Pokémon Go players that have no relation to a community association may attempt to enter onto common areas such as roads, sidewalks, greenspaces, pools or clubhouses. In some cases, Pokémon Go players may also attempt to enter onto yards, driveways, take pictures of condominium units or individual homes. In instances where the Pokémon Go player(s) has no relation to the community association, the community association has several options.

First, as a practical matter, a community association board can simply file a request to have a certain location removed from the Pokémon Go game at the Pokémon Go support page and report an issue with a gym or Pokémon stop. While there is no guarantee that the location will be removed, this is an easy and practical initial step for a community association board to take to try and resolve a Pokémon Go invasion.

Second, if removing the location of a community association from Pokémon Go does not resolve the issue, the common areas of a condominium or subdivision are often private property that is administered by the community association. Third parties that do not have a legal basis for being on private property may qualify as trespassers. In serious cases where third parties ignore warnings to leave, or continue to come back, a community association board could file a civil action to obtain an injunction preventing trespasses or call the police to see if they will remove the trespassers.

Given the issues thus far caused by Pokémon Go players that forget their real world surroundings, it is recommended that a community association board take some action to prevent third-party trespassers in the common areas. Third-party trespassers not only pose a nuisance to the owners, but also create safety hazards and additional liability issues for community associations. Accordingly, a condominium association or HOA should not sit idle when it learns of continued trespasses by Pokémon Go players that have no relation to the community and ignore a friendly request to leave the premises.

Can you stop co-owners, invitees, guests or renters from playing Pokémon Go?

While community associations certainly have an interest in preventing trespassers from playing Pokémon Go in common areas, they must also be mindful of regulating co-owners, invites, guests or renters. As an initial matter, a condominium association or HOA should review its existing bylaws to determine whether it currently has restrictions in place regarding use of the common elements or whether it has the ability to make rules and regulations regarding the use of the common elements. In many instances, if Pokémon Go players get out of hand, condominium bylaws contain provisions that preclude a co-owner, renter or a guest from causing a nuisance, obstructing the common elements or engaging in activity that increases the rate of insurance.

While the above types of bylaw provisions provide broad power to a community association, a condominium association or homeowners association would be best served to create a specific set of rules and regulations that relates to Pokémon Go if it is becoming an issue for the community association. By way of example, a condominium association or homeowners association may wish to restrict certain locations where Pokémon Go is played, the time of day that is played, etc. This is not only important from a nuisance perspective, but also from a safety perspective as a co-owner or guest could easily walk off the ledge of a retaining wall or fall into a retaining pond if they are not paying attention. However, when creating rules related to Pokémon Go a community association should be mindful of the federal Fair Housing Act, 42 U.S.C. § 3601, et seq. The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities . . . because of race, color, religion, sex, familial status, or national origin.” Accordingly, any rules related to Pokémon Go would need to apply to allow co-owners and should not be targeted at children.

Conclusion

While Pokémon Go may be the most popular video game in recent history, and it certainly has benefits, condominium associations and homeowners associations need to be prepared to deal with issues relating to nuisance, trespass and safety concerns that come with playing Pokémon Go. Community associations should be vigilant when it comes to protecting trespassers on private property. Community associations should also make decisions as to whether co-owners, renters or guests will be allowed to play Pokémon Go in common areas. If a community association does allow for Pokémon Go to be played, it should evaluate whether it needs to amend its bylaws or adopt reasonable rules and regulations relating to Pokémon Go.

Kevin Hirzel is a partner in our Livonia and Clinton Township offices where he concentrates his practice on commercial litigation, community association law, condominium law, construction law, real estate law, and probate and estate planning. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.

CMDA’s Annual Golf Outing 2016

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Architectural Control: Sculptures, Statues, Lawn Ornaments, Birdbaths and Other Items on the Common Elements or Lots

Joe Wloszek_8x10@300Numerous condominiums in Michigan restrict (or outright ban) sculptures, statues, lawn ornaments, birdbaths or other items pursuant to the condominium documents. Many of these provisions were drafted by the developer when creating the condominium in order to provide uniformity during the sales process. Likewise, many declarants subjected a platted subdivision to deed restrictions that also restrict or ban the use of the above described items. Whether in a condominium or homeowners association (“HOA”), many people purchase without knowing the restrictions. The purpose of this article is not to say what restrictions or bans are appropriate in every circumstance. Such decisions are best left to each individual association or democratically handled through the amendment process. However, this article discusses common restrictions and common traps that Michigan community associations handle.

Michigan Condominiums: Michigan Condominium Act

The Michigan Condominium Act, MCL 559.101, et seq., does not prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the condominium premises. While some condominium documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths and other items, more often than not such restrictions are explicitly contained in the governing documents of the condominium. Such restrictions are permitted under MCL 559.153, which states, in part, “The administration of a condominium project shall be governed by bylaws recorded as part of the master deed, or as provided in the master deed.” Therefore, in the condominium context, the first place to check for restrictions of items on the condominium premises is in the condominium bylaws and in the vast majority of cases, the restrictions are contained within Article VI of the condominium bylaws.

A second place to look for restrictions is in the rules and regulations duly adopted by the association. Under MCL 559.165, “Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and [the Condominium Act].” Failure to comply with the condominium documents may expose the offending co-owner to a lawsuit by the Association. MCL 559.206 states:

A default by a co-owner shall entitle the association of co-owners to the following relief:

(a) Failure to comply with any of the terms or provisions of the condominium documents, shall be grounds for relief, which may include without limitations, an action to recover sums due for damages, injunctive relief, foreclosure of lien if default in payment of assessment, or any combination thereof.

(b) In a proceeding arising because of an alleged default by a co-owner, the association of co-owners or the co-owner, if successful, shall recover the costs of the proceeding and reasonable attorney fees, as determined by the court, to the extent the condominium documents expressly so provide.

(c) Such other reasonable remedies the condominium documents may provide including but without limitation the levying of fines against co-owners after notice and hearing thereon and the imposition of late charges for nonpayment of assessments as provided in the condominium bylaws or rules and regulations of the condominium.

Therefore, it is important to check the specific language of your condominium documents to determine the nature and extent of restrictions, if any.

Michigan Homeowners Associations: Michigan Nonprofit Corporation Act

Michigan does not have a “Homeowners Association Act.” Accordingly, restrictions relating to sculptures, statues, lawn ornaments, birdbaths and other items are either governed by recorded deed restrictions or association bylaws adopted pursuant to the Michigan Nonprofit Corporation Act, MCL 450.2101, et seq. Absent a restriction in the recorded deed restrictions or in the association bylaws, which are typically not recorded, a homeowners association typically cannot prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the owners’ lots.

Similar to condominiums, there are some homeowners associations whose documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths, sheds and other items; however, more often than not, association documents do restrict such items. In the homeowners association context, the first place to check for restrictions is within the deed restrictions, which is often called the declaration of restrictions. In the vast majority of cases, such restrictions are contained in either Architectural Control or Building and Use Restrictions.

A deed restriction represents a contract between the buyer and the seller of property.  Uday v. City of Dearborn, 356 Mich. 542, 546, 96 N.W.2d 775 (1959).  “Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction:  the freedom of contract, which is deeply entrenched in the common law of Michigan.”  Terrien v. Zwit, 467 Mich. 56, 71, 648 N.W.2d 602 (2002), citing McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79 (1867). The United States Supreme Court has listed the “right to make and enforce contracts” among “those fundamental rights which are the essence of civil freedom.”  United States v. Stanley, 109 U.S. 3, 22 (1883).  We “respect[ ] the freedom of individuals freely to arrange their affairs via contract” by upholding the “fundamental tenet of our jurisprudence that unambiguous contracts are not open to judicial construction and must be enforced as written,” unless a contractual provision “would violate law or public policy.”  Rory v. Continental Ins. Co., 473 Mich. 457, 468, 470, 703 N.W.2d 23 (2005).  In Michigan,

A covenant is a contract created with the intention of enhancing the value of property, and, as such, it is a “valuable property right.” City of Livonia v. Dep’t of Social Services, 423 Mich. 466, 525, 378 N.W.2d 402 (1985). “The general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”

Terrien v Zwit, 467 Mich 56, 71; 648 NW2d 602, 611 (2002). Therefore, under Michigan law, restrictions or bans of specific items on the lots subject to deed restrictions is typically permitted.

There are Restrictions: Now What?

Once the appropriate provisions in the condominium documents or the deed restrictions are located, the question becomes whether the items are restricted/regulated or altogether banned. Our office routinely encounters arguments by co-owners or owners that specific items are not prohibited by the governing documents. For example, if birdbaths are prohibited, someone may claim that an item is not a birdbath, but the item is a “fountain”. As another example, if statues are prohibited, someone may claim that an item is not a statue, but the item is a “lawn ornament”. These are but a few examples of the types of nuances utilized in an attempt to circumvent restrictions. Whether such arguments are successful depends on a case-by-case basis. It is advisable for associations to define (to the extent possible) what is and what is not allowed.

One way to handle such circumstances is to address each situation on a case-by-case basis through an architectural control committee. The committee is given the ability to review and approve/disapprove any items on the condominium premises or lots. If an owner/co-owner is not happy with the decision of the committee, the owner/co-owner usually has multiple avenues of recourse, depending on the language of the governing documents, such as 1) convincing the committee it is wrong through logic or persuasion, 2) modifying the original request 3) attempting to alter the composition of the committee via political means or 4) amending the governing documents to add, remove or modify certain restrictions.

Conclusion

As with any restrictions when living in a community association, whether to permit, restrict or ban sculptures, statues, lawn ornaments, birdbaths and related items is up to the discretion of each particular association. However, it is important for the board to enforce these restrictions when enacted according to their plain language to avoid a claim for selective enforcement or waiver. Rather, the best approach is to consistently enforce restrictions as written and amend the restrictions if they do not satisfy the needs of the community.

Joe Wloszek is an attorney in our Livonia office where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. He can be reached at (734) 261-2400 or jwloszek@cmda-law.com.