The court issued a narrowly divided 3-2 opinion on the matter on Thursday, June 17, which was sparked when neighbors filed a lawsuit against the owners of an abusive adjacent property in the Black Hills, arguing they had the Limitations of the agreement broken.
But after a long disagreement with the majority over the definition of terms in the Shirt Tail Gulch’s private housing rules, presiding judge Steve Jensen – along with two retired judges including former Chief Justice David Gilbertson – ruled that landowners were allowed to make extensive use of it the 5 bedroom, 5 bath house outside of Deadwood as they see fit and even make tens of thousands of dollars renting out to other people while they seldom use the house for themselves.
“It is undisputed that the property is used for eating, sleeping and recreational activities,” wrote Jensen. “This is why short-term vacation rentals are a contract-compliant residential purpose.”
For the court it was about the contract language, which states that apartments on the privately built property in the subdivision must be “free from nuisance” and “except for residential purposes, which include normal residential employment and offices”, recognized professions and bed & breakfasts -Use.”
The dissent, written by Judge Janine Kern and authored by Judge Patricia DeVaney, exceeded opinion in length, arguing clearly with the Chief Justice’s definitions of “living rooms”, finding that the contract in its entirety appears to prohibit rental activity.
Judge Kern noticed the couple – Rory and Kristen Maynard – live in Spearfish, earn about $ 60,000 annually, and rarely, if ever, stay in the three-story, five-bedroom home.
“If you just look at this cursory list of undisputed facts, it’s hard to say that the Maynards are doing anything other than a ‘commercial‘ endeavor,” wrote Kern.
The mountain rental neighbors Robert and Sharlene Wilson sued the Maynards in May 2017. The rental began in June 2018 and court records show the house is rented for up to 120 nights a year.
The house is rented out daily, especially in the summer months, which are heavily frequented by tourists, Kern wrote – at the Sturgis rally for $ 1,200 a day.
But Kerns Dissent did not affect the other judges, who found that the interpretation of the Shirt Tail Gulch Division’s contract to ban rentals could even prevent owners from allowing anyone – even a family member – to live on the property.
“Therefore, under ‘residential purposes’ can clearly be understood the use of a house or apartment for an indefinite period of time,” wrote Jensen.
The 3-2 opinion is rare in the South Dakota Supreme Court, albeit more recently, as the court issued a separate 3-2 judgment in a case involving the right to an expeditious trial. In both cases, Kern and DeVaney disagreed.
Thursday’s opinion also comes as legal watchers across the state await another almost-anticipated controversial decision – whether the election measure to legalize recreational marijuana, which was voted on by over 50% of voters last November, was a legal constitutional change.
This change was overturned in February by a district judge in Pierre, effectively preventing the measure from taking effect on July 1st.