STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 12, 1971

Bernard E. Duffy, States Attorney
Stanley County
Fort Pierre, South Dakota 57532

OFFICIAL OPINION NO. 71-16

Assessment of Mobile Homes

Dear Mr. Duffy:

You have requested my official opinion on the following factual situation:

In this county, and in particular within the City of Fort Pierre, residents have purchased and placed mobile homes upon real property and in doing so have removed the wheels and the hitch, and in many cases have placed them on a permanent foundation. By doing this, they are able to comply with the zoning laws of the city which would otherwise restrict the placing of the mobile home in that particular area. In regard to this, I would like to ask the following questions:

1. If a mobile home is placed on a permanent or a semi-permanent foundation and the wheels and hitch removed, then, under the ruling of the law of this state, should said property be taxed as real property, or may a mobile home license be purchased in lieu of real property tax?

2. Does the owner of such a residence, the wheels and hitch having been removed, have the option, once the residence is so placed, to purchase a mobile home license or registration or to declare it as real property?

3. If such a mobile home has been placed as above set forth, does the Director of Equalization have any discretion in assessing the property as real property or issuing a mobile home license or registration?

SDCL 10-9-1 defines mobile homes as all vehicles without motive power which have as their primary purpose the providing of adequate, comfortable quarters for living or while on pleasure excursions or while touring for business, professional, educational, or recreational purposes. While there is no specific definition of the term "vehicle" in this act, SDCL 32-14-1(1), relating to traffic regulations generally, defines a vehicle as "every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided that for the purpose of said chapters a bicycle or a ridden animal shall be deemed a vehicle,"

Because of modern trends in the construction and use of what commonly are known as mobile homes or portable homes and because in some instances it has been the practice for owners of the same to install them on a permanent or semi-permanent basis on real property, it was necessary for the department of revenue to consider this matter and particularly whether the special form of classification for taxation provided under SDCL 10-9-2 should apply or whether the general assessment of this property as real property should be made. In view of this question, the Commissioner of Revenue on March 11, 1969, adopted the following regulation.

Any form of housing adaptable to motivation by a power connected thereto, commonly called trailers or mobile homes, which are located on a permanent foundation on real property belonging to the owner of the mobile home and are connected to utilities and from which the wheels or carriage and hitch have been severed, do not constitute a vehicle under the mobile home tax law, that being SDCL 1967, 10-9; unless a contrary intention of the owner clearly appears, and the same shall be classified as structures on real property as the same is defined by SDCL 1967 10-4-2.

Since it is possible that an individual could place a mobile home on a semi-permanent foundation on his own property and yet continue to consider the unit as a mobile home rather than a permanent fixture to real property, the regulation above quoted provides that it should be classed as real property unless, "a contrary intention of the owner clearly appears."

It appears from your statement of facts that the owners have, in the first instance, expressed an intention of having their property classed as a structure or an addition to real property in order to comply with the zoning ordinances. On the other hand, when they seek to license the unit and pay a mobile home tax they are expressing a contrary intention. It appears, therefore, that a fact situation is presented in each instance which should be determined by the local officials which should take into account the apparent intention of the owner.

In answer to your question No. 1-If it appears the owner of the unit has taken those actions which are described in the regulation as steps to removing the unit from its former character as a vehicle, the property should be taxed as real property.

In answer to your question No. 2- The owner of such a residence certainly has an option to express an intent that his unit is not a permanent structure to real property, this would, however, put him in jeopardy of being in violation of the zoning ordinance.

In answer to your question No.3-In my opinion the Director of Equalization does not have independent discretion to determine whether a property is real property or a mobile home, but is bound by the expressed intention of the owner.

Respectfully submitted,

Gordon Mydland
Attorney General