South Dakota Easements and Servitudes

Even if a community has a valid reason to restrict short-term rentals, it still needs legal and/or contractual authority to support the restriction. Typically, the authority comes from an HOA's declaration, from state law, or a combination of the two. A declaration is a contract among property owners in a community. The owners jointly agree to accept certain obligations and restrictions on how properties in the community can be used. If everyone complies, the community as a whole will benefit—or at least that is the idea.

Up until the 1968 passage of the Fair Housing Act (“FHA”), homeowners associations had a lot of leeway to interfere with religious practices or promote particular denominations.  But now that the FHA is firmly entrenched in the national lexicon, there are significant limitations on the power an HOA has to restrict religion.  The Fair Housing Act, 42 U.S.C. §3604(b), makes it unlawful for “housing providers” (including community associations) “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”

Restrictive covenants in homeowners’ associations are not unusual—nearly every community has them.  For homeowners, the restrictions are something of a trade-off.  You accept a limitation on how you can use your property because, if everyone else in the community does, too, the neighborhood as a whole will be better off.  ‘If we all agree to keep our yards well-maintained and our houses painted nice-looking colors, we all benefit from a more attractive neighborhood with higher property values.’ Courts view HOA restrictions along the same lines as any contract and presume the restrictions are enforceable unless there’s a specific reason why the restriction should not be enforced.

For community associations, the challenge is to craft an unmanned-aircraft policy that balances the interests of amateur drone operators against the rights of their neighbors. On one hand, drones unquestionably offer many practical advantages, and piloting a drone can be a fun and rewarding hobby. On the other, homeowners have a right to a safe and nuisance-free community where they can enjoy their property and families without any unwarranted intrusions—whether by man or machine. It can be tricky to find that cozy middle ground, but doing so gets easier if you know a little more about the positives and negative aspects of drones.

Freedom of speech is perhaps the most cherished and most important protection provided by the United States Constitution.  The delegates to the Constitutional Convention viewed citizens’ right to speak their minds without fear of government retribution as so important that “freedom of speech” is enshrined in the very First Amendment of the Constitution.  Indeed, many Convention delegates refused to ratify the Constitution absent an unqualified guaranty that the new government would be forbidden from “abridging the freedom of speech.”

Zoning ordinances and HOA covenants often disallow commercial uses of properties in residential areas.  A group home that accepts payments for services provided at the home is almost certainly engaging in commercial activity.  But, although the plain language of an ordinance or covenant might appear to prohibit such a group home, federal law forbids state and local governments or HOAs from impeding certain protected uses (more on that later). Importantly, there are different categories of group homes, and the laws protecting each home depend in large part on what kind of home is involved.