An eviction can be compared to a divorce between a landlord and a tenant. It is the legal process a landlord must use to get rid of an unwanted tenant.
In South Dakota, as in most states, the laws for evicting a tenant during the term of a lease contract are very different from those for a periodic tenancy or a hold-over tenant. And, this is somewhat more complex in South Dakota since its statutes refer to both month-to-month rental agreements and one-year contracts as leases.
Set-term leases in South Dakota are the same as leases in other states, and similar rules apply.
- Notice. In order to evict a tenant in South Dakota, the landlord first must give notice that they are terminating the tenancy, then file for eviction. The amount of notice depends on the reason for eviction.
- Timing. A typical eviction in South Dakota can take between five to 12 weeks.
Landlords and Tenants in South Dakota
The legal relationship between a landlord and a residential tenant is governed in large part by state law. In South Dakota, these rules are set out in South Dakota Code Chapter 43, titled "Lease of Real Property."
Written Lease Agreements in South Dakota
Residential tenants in South Dakota can occupy rented dwelling units by signing a set-term lease with the landlord or by entering into a month-to-month rental agreement.
While South Dakota statutes use the term "lease" for all rental agreements, it generally has a specific legal meaning:
- Lease. A written contract under which the tenant agrees to stay in the premises for a set period of time, usually one or two years, and is responsible for paying rent during that entire period.
The written set-term lease contract also sets out the terms of the tenancy. These include:
- Rules about living in the unit, such as whether pets and smoking are allowed
- Noise restrictions.
Rental Rate Laws
A landlord agrees to allow tenants to stay in the building for the period of the lease for a specified rate per month. The landlord cannot change the amount of the rent during the lease term but can do so, with appropriate notice, after the termination of the lease term.
South Dakota Set-Term Lease vs. Rental Contract
While many tenants in South Dakota lease their premises for a set term, it isn't a requirement. It is possible to rent a house or an apartment without a set-term lease. Generally, tenants who rent without set-term leases sign a rental agreement, known as a rental contract.
Rules & Restrictions
Sets out the rules and restrictions for the dwelling, such as pets, smoking, and when rent is due.
Sets out the rules and restrictions for the dwelling, such as pets, smoking, and when rent is due.
Length of Tenancy
Set out a specific length of tenancy, usually for one or two years.
Does not set out a specific length of tenancy. This type of rental is called a periodic tenancy and while the period can be any term, it is usually for a month.
The tenant agrees to pay rent for that period
The tenant makes no legal commitment about how long they will stay.
Must be in writing if over for more than a year.
Does not need to be in writing.
Can only be terminated by landlord at the end of the lease term absent breach of lease terms.
Can be terminated by landlord with 30 days notice to tenant, or by tenant with 30 days notice to landlord.
Tenancies Without Written Leases
What happens if the landlord and tenant do not sign any written agreement at all? In South Dakota, it is not mandatory for a rental agreement to be in writing as long as it is not a set-term lease agreement for more than a year.
Otherwise, a landlord/tenant relationship is formed under South Dakota landlord tenant law whenever a property owner accepts payment for residential use of their property.
It's always a better idea to put rental agreements in writing, but an enforceable oral contract is formed in this situation. An oral contract is usually a periodic month-to-month tenancy.
Terminating Tenancy at End of Lease Term
Set-term lease tenants in South Dakota are under a contractual obligation to stay for the entire period of the lease. (There are exceptions for service members.) This does not mean that they have to actually live in the leased dwelling, but they do have to pay rent for that period.
The landlord must allow a tenant with a lease to stay through the term of the lease as long as they follow the lease terms. The lease terminates when the period is over.
Once the lease terminates, the tenant no longer has the right to stay, but sometimes they continue to pay rent, and the landlord accepts it. If the landlord does not want to extend the lease period, they must refuse to accept rent payments.
Otherwise, the lease is deemed extended for another period equal to the first term of the lease for the same rental amount and under the same conditions. Note that this is different than in many states where a hold-over tenant becomes a month-to-month tenant if rent is accepted.
Tenants under a periodic tenancy, on the other hand, can end their tenancy any time by giving the landlord 30 days' written notice.
For example, in a month-to-month periodic tenancy, a renter may give notice on January 31 that they intend to vacate on March 1.
In South Dakota, the landlord has similar rights. They can end the tenancy at any time and without any reason by giving the tenant 30 days' notice.
Terminating Tenancy Before End of Lease Term
A landlord can also terminate a lease before the end of the term in South Dakota. This is true whether the lease is a month-to-month or a set-term lease.
But this is only possible with "good cause." That is, the tenant must have done something to break the terms of the lease agreement.
- Late Payments. If the tenant fails to pay rent on time. In South Dakota, rent is late the day after it is due.
- Premise Use. If the tenant uses or permits others to use the premises in a manner contrary to the lease agreement
- Repairs. If a tenant fails to make repairs that they are obligated to make.
Eviction for Lease Violation
Breaches of contract constitute grounds for eviction, but a landlord also can evict because the rental unit is being sold.
In South Dakota, breaches of a rental agreement include:
- Keeping an unauthorized pet, guest or vehicle.
- Parking a vehicle in an unauthorized area.
- Not maintaining a certain level of cleanliness.
- Illegal activity including threats or violence.
- Damaging the rental property.
Beginning the Eviction Process
The first step in evicting a tenant for one of these reasons is written notice from the landlord to the tenant. The notice must state the reason for eviction and the period of time the tenant has to move out.
In some states, the tenant has the right to remedy the issue within a certain period and stay in the premises. But South Dakota law does not give them this right.
Eviction Notice Periods
The notice period depends on the reason for the eviction:
- Failure to pay rent or sale of premises: Three-day notice of termination is required. This notice gives the tenant three calendar days to vacate the premises without any chance to fix the issue.
- Tenant is month-to-month or hold-over after lease expires: 30-day notice of termination is required.
- Tenant has violated lease terms or lied about a service animal: No notice of termination is required. The landlord must give a "Notice to Quit," which informs the tenant that they must vacate the unit immediately to avoid facing an eviction lawsuit. The
landlord can immediately file an eviction action.
If a landlord does not have good cause to evict a tenant, they must wait until the end of the lease term to terminate the tenancy. At the end of the term, the landlord can decline to renew the tenancy and, if the tenant refuses to leave, file an eviction suit in court.
South Dakota Eviction Process
If a tenant is being evicted for breach of lease, or if the time period given in the notice has passed and the tenant has not vacated, the landlord can file an eviction lawsuit.
The tenant is served with a South Dakota eviction notice informing them that the eviction process has begun. It advises the tenant of the time and place for the court hearing.
This form must be served in the correct manner as specified under South Dakota law. This usually involves hiring a process server to personally hand the document to the tenant, but, in some cases, law enforcement personnel can serve the papers.
The idea is to make sure that the tenant knows about the time and place of the hearing so they can appear and present arguments.
Tenant Defenses to Eviction
There are valid defenses a tenant can raise in South Dakota. For example, a tenant may claim that they are being evicted for a discriminatory reason, such as discrimination based on their race or heritage.
Or they may raise a defense of retaliatory eviction – the landlord is evicting them for exercising their legal rights.
This can happen, for example, when the tenant contacts a city health department to report unsanitary or illegal living conditions.
Eviction Court Hearing
At the eviction hearing, both parties have a chance to present their arguments to the court.
If the court rules in favor of the tenant, the eviction process ends, and the tenant has the right to remain in the unit until the lease expires.
If the court rules in favor of the landlord, the eviction proceeds, and the court issues an Execution for Possession, also known as a Lockout. This order specifies that the sheriff’s office has the authority to physically remove the defendant from the property.
Removing the Tenant From the Premises
In South Dakota, eviction is a matter for law enforcement. The physical eviction that removes both the tenant and their property from the dwelling cannot be personally done by the landlord.
A South Dakota landlord is not permitted to use self-help to get a tenant out; if they try to do so, they may be held liable for damages in a civil lawsuit by the tenant.
In addition, a South Dakota landlord may forfeit the right to recover back rent if they attempt to force out a tenant without following the procedures required by South Dakota eviction laws.
Unlawful self-eviction is defined as any action taken in an effort to force tenants to move. This includes:
- Changing the unit’s locks without a court-issued eviction order.
- Turning off utilities to the unit.
- Creating an uninhabitable environment for tenants, such as removing security features or causing an excessive amount of noise.
When the court rules in favor of the landlord and issues an Execution for Possession, this order is passed on to the sheriff, who is responsible for overseeing the tenant’s move from the premises.
The landlord is usually present at the eviction, often with a locksmith who will change the locks after the tenant has vacated the unit.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.