The new mobile app Pokémon Go has become contagious, capturing the publics imagination, but a specialist in real estate and agricultural law has warned that players could find themselves breaking trespass laws.
Head of the Agricultural and Landed Estates team at South West law firm Lodders, James Spreckley, explains: Pokémon Go players have hit streets, shops, parks, libraries and churches amongst many other public places, aiming to catch characters, not realising that in their quest, they could well be venturing onto private land and in turn be liable for an accidental trespass.
Pokémon Go uses a technique called augmented reality to allow players to use their smartphones to hunt and capture cartoon monsters or Pokémon characters in the real world. Some businesses are using the game to their advantage by dropping lures within their business, which are in-game items which attract Pokémon and in turn, crowds of people to their business.
For farmers and landowners the situation is likely to be very different with a risk for both the landowner and the trespasser should someone venture onto their land, says James. The Country Land and Business Association (CLA) has already received several reports from its members of players trespassing while using their smartphones to play the game.
Pokémon Go players are warned to stay away from farms and private land. Not only could players be injured by livestock or machinery, they could also face a claim for trespass and even criminal charges.
James explains that negligent or accidental trespass can incur liability, as well as intentional trespass: Negligent or accidental trespass can incur liability, as well as intentional trespass. Trespass to land involves an unjustifiable interference with land which is in the immediate and exclusive possession of another. Interference to the land covers physical entry as well as the abuse of a right of entry however, and the slightest crossing of the boundary into someones land is sufficient to result in a trespass.
Trespass will be a problem for landowners particularly if this leads to damage or disturbance to crops or livestock, to nature reserves and land set aside for environmental work or where agricultural machinery is at work on the land.
The advice to landowners is clear: If you are a landowner, then civil trespass is usually actionable in the courts, however, the costs and time involved could be significant and possibly disproportionate, says James. If a civil claim is successfully brought, you may be able seek damages or an injunction, or both. In practice, damages are likely to be awarded only in cases where there is physical damage caused or where the landowner is deprived of his use of the land. In certain circumstances, criminal charges can be brought against a trespasser.
Perhaps the bigger risk for a landowner though lies in an uninvited trespasser being injured whilst on their land particularly if there have been regular trespasses by gamers, and then making a claim against them. This is because a landowner owes some duty of care even to trespassers even though they may are, by definition, uninvited. That duty can vary depending upon the age and frequency of the trespassers too. It is therefore vitally important to minimise that risk.
Advice for landowners
Whilst this will be more of concern to some rather than others, in order to prevent trespass and limit the risks, landowners should take extra security provisions such as:
Reviewing your land holding and the risk profile of any features and consider keeping a risk assessment record
Improving fencing and security particularly where there are identifiable hazards
Putting up signs to stress the land is private keep out and warning signs
Ensure signs detail that the landowner does not accept liability for any damages caused
Use this as an opportunity to check your insurances are all up to date
Advice for players
Stick to designated public rights of way as marked on maps or sign posts
Ensure dogs are kept on leads around farm animals and horses
Maintain awareness of your surroundings at all times
Leave gates and property as you find them
Be aware of farming machinery particularly during harvest time
Be aware that damage to land can be caused just from walking on it.
Lodders Solicitors LLP is an established and thriving law firm based in Cheltenham, Stratford upon Avon and Henley in Arden. The firm is recognised as a leading private client law firm, offering specialist advice to both private individuals and privately owned businesses, including its highly regarded work in the agricultural and real estate sectors. For more information, visit: www.lodders.co.uk