HOT SPRINGS, S.D. (AP/South Dakota NewsWatch) – A new class-action lawsuit, if successful, could require the California owner of former military munitions bunkers near Edgemont to pay more than $17 million to people who rent the so-called igloos for use as homes or shelters to protect them in the case of a global catastrophe.
The lawsuit filed in Fall River County Circuit Court alleges on a basic level that Vivos xPoint Investment Group, the owner of the Vivos xPoint bunker complex, uses an illegal lease that is unenforceable and violates the rights of the bunker residents.
The lawsuit is similar in its claims to an earlier case filed by an individual former resident of the Vivos complex that challenged the legality of the bunker lease. That claim was upheld by a circuit court judge but has been appealed by the complex owner and is awaiting a hearing before the South Dakota Supreme Court.
The new lawsuit also alleges that the investment group made “deceptive and misleading statements” by promising to provide numerous amenities at the bunker complex, most of which have never been built. It seeks a return of all money paid to Vivos by more than 150 tenants.
The Vivos xPoint community includes hundreds of above-ground, earth-covered concrete bunkers that were used by the U.S. military from 1942 to 1967 to store conventional and chemical munitions in a town once known as Igloo.
A large portion of the former Black Hills Army Depot munitions facility was purchased and developed in 2016 by California businessman Robert Vicino. The 2,200-square-foot bunkers are now rented as residences, mostly to survivalists, or “preppers,” who want to live off the grid and be positioned to survive a global catastrophe.
According to prior reporting by News Watch, the residential community located on windswept prairie land 8 miles south of Edgemont has been beset by conflicts between residents and employees, numerous lawsuits, several complaints to the state attorney general’s office and a near-fatal shooting of a complex employee by a tenant in 2024.
After a grand jury review, the tenant was not charged.
News Watch interviewed more than a dozen people, reviewed hundreds of pages of court records, examined emails and internal Vivos communications, filed three open-records requests and visited the Vivos site to understand the unrest that exists within the community.
Records in the South Dakota Secretary of State’s office show the investment group is licensed to Vicino. He is also the owner of a parent company called Vivos Group, which states on its Vivos Global Shelter Network website that it provides access to bunker complexes in South Dakota as well as at other sites in the U.S. and Europe.
Vicino did not return a call from News Watch seeking comment, and his attorney, Eric Schlimgen of Spearfish, also did not return calls or an email seeking comment.
In a prior interview, Vicino told News Watch that those who complain at Vivos xPoint are “bad apples” and that most tenants are happy with their treatment.
People who live in the bunkers or have them ready to occupy do not buy them outright. Instead, they pay an upfront fee of up to $55,000 and sign a 99-year lease that governs the landlord-tenant relationship.
The 14-page lease and an accompanying long list of community rules became the subject of lawsuits after they were used as the basis to evict several bunker residents who then lost the right to occupy the bunkers despite paying the upfront fees and a monthly service fee.
The lease requires tenants to use their own money to make the bunkers habitable, including installing basic utilities.
The lease then allows Vivos to evict tenants while retaining the value of those improvements, said J. Scott James, a Custer attorney representing plaintiffs.
James previously told News Watch that Vivos finds ways to evict tenants and then re-leases their bunkers with a requirement that new tenants still pay the upfront and monthly fees.
James said the class-action lawsuit is a natural progression in the legal claims against Vivos xPoint, so far upheld in court, that now makes it possible for all bunker renters to seek financial remedies.
The case was filed prior to the ruling by the Supreme Court on the first case because Scott said tenants told him that the complex ownership was offering or was about to offer tenants a new lease that would have reduced or eliminated their rights to sue.
Just as in the case before the Supreme Court, the class-action lawsuit argues that the Vivos lease is illegal because it is “illusory,” a legal term that essentially means the complex ownership can change the contract at any time without consideration or approval of the tenants.
“The unfettered ability of Vivos to unilaterally change material provisions of the lease, as well as the ability to evict (tenants) … makes the lease illusory, unlawful and unenforceable,” the lawsuit states.
The case makes a further separate argument that the lease is invalid because it does not comply with a South Dakota law that requires landlords to provide basic utilities, services and upkeep.
The existing lease, which requires tenants to install their own electricity, water, plumbing, sewer and communication services, would therefore be illegal under state law, James said.
The new lawsuit also raises consumer protection arguments in that Vivos has failed to follow through on promises made to tenants before they signed the lease, James said.
“The way Vivos marketed this development and these bunkers to these folks contained a lot of deceptive material, and so they were made a lot of promises,” he said. “People were given tours and told that there’s a medical facility, and there’s not a medical facility. They were told, ‘You’re going to get a gymnasium and a laundry, and all this kind of stuff is going to happen.’”
James said none of those amenities have been provided, even several years after the promises were made. He added that trash pickup, security services and road maintenance have been spotty over the years.
The new lawsuit was filed Sept. 16 on behalf of six people who leased bunkers in the complex, including two who live there and four others who live elsewhere but lease a bunker to be ready if needed.
If class-action status is granted, as many as 150 bunker lessees would qualify for settlement money unless they specifically opt out, James said.
He said that as word of a possible class-action case spread through the Vivos complex, he has already heard from more than 40 tenants interested in knowing more about it.
The lawsuit seeks a return of all money paid to Vivos by tenants, including the up-front lease fees ranging from $25,000 to $55,000 per tenant, the money tenants spent on improving the bunkers to make them habitable and the monthly common area amenity fees. It also calls for payment of attorney fees and possible punitive damages.
After doing a rough calculation, James estimated Vivos could have to pay the tenants more than $17 million if the lawsuit is upheld, which would be in addition to any attorney fees or damages.
If Vivos cannot pay, the lawsuit contends that the tenants would then be allowed to take ownership of the leased bunkers and land beneath them, James said.
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