South Dakota Landlord Tenant Law

Looking for clear and concise information on South Dakota landlord tenant law? Get all your answers from this plain English guide to the South Dakota Landlord Tenant Act.

SD Landlord Tenant Law:

• South Dakota Codified Laws Title 43, Chapter 32 - Lease of Real Property

Tenant Application

Application Fees

The landlord can ask prospective tenants for application fees to cover the costs of background and credit checks. The fee amount should be reasonable - We recommend charging $25 to $30 per applicant. If the landlord did not run any tenant screening checks, the fees should be refunded.

Background and Credit Check

Before running background or credit checks on tenant applicants, landlords must first obtain the applicant's written permission. [Fair Credit Reporting Act § 604(a)(3)(F)]

For landlords to run background and credit checks, the tenant application form needs to ask for the applicant's:

• full name
• date of birth
• social security number or ITIN (individual taxpayer identification number)
• current address
• signed consent (e.g. "I authorize the use of the information and contacts provided to complete a credit, reference, and/or background check.")

Avoiding Discrimination

The federal Fair Housing Act disallows landlords from rejecting prospective renters based on their race, color, religion, nationality, sex, *familial status or physical/mental disability. *Familial status means landlords cannot reject someone for having one or more children under 18. Familial status also includes pregnant women and people planning to have (or adapt) children under 18.

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Tenancy Agreement

A tenancy agreement (also known as a lease agreement or rental agreement) can be written or verbal.

The landlord and tenant can choose between a month to month tenancy or fixed term lease. For a month to month tenancy, the landlord or tenant can change its terms and conditions at the end of every month. For a fixed term lease, the landlord and tenant CANNOT change the lease terms and conditions during its duration... unless there is written consent from both parties.

Required for Tenancy Agreement

South Dakota landlord tenant law requires all tenancy agreements to contain the following details:

• Disclosure and information of lead-based paint in the property (for housing built before 1978)

Recommended for Tenancy Agreement

• Name and address of tenant(s)
• Number of people (occupants) staying on the property
• Type of tenancy: month to month tenancy or fixed term lease
• How much is the rent
• When, how and where the rent is to be paid
• When is rent is considered late and the penalties for late rent payment
• How much is the security deposit and pet deposit (if any)
• Who holds the deposit(s) and where will it be held
• What utilities and services are provided and who pays for them
• What are the landlord's and tenant's duties for property maintenance
  
• Can the tenant sublet the property or assign the lease
• When to inform the landlord if tenant will be away for a long time
  
• Prohibited activities and items
  

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Security Deposit

South Dakota landlord tenant law allows the landlord to ask for up to one month's rent as security deposit. The landlord is allowed to ask for more than one month's rent "where special conditions pose a danger to the maintenance of the premises." [SD 43-32-6.1]

There are no South Dakota landlord tenant laws on security deposit holding methods and security deposit interest.

Deductions and Returns

South Dakota landlord tenant law requires the landlord to inform the tenant of the terms and conditions for security deposit deductions.
  
Valid reasons for security deposit deductions (under South Dakota landlord tenant law) include [SD 43-32-24]:

• Rent owed
• Repair and cleaning costs to return the property to its original condition (before lease began)

The landlord is NOT allowed to take money from the security deposit due to damage from *normal wear and tear. *Normal wear and tear is the natural deterioration of the property (and its contents) from normal everyday use.

Once the lease terminates and the tenant returns the property, the landlord must send the tenant a written statement of security deposit deductions and refund any remaining deposit within two weeks.

The tenant can request for an item-by-item accounting of the deposit deductions and the landlord has to send it to tenant within 45 days (of lease termination).

If the landlord fails to follow South Dakota landlord tenant law for deducting and returning security deposit, the landlord shall not be allowed to keep any deposit. If the landlord did not send a written statement or item-by-item accounting (when requested), the landlord shall have to pay up to $200 in damages.

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Rent

The tenant has to pay the rent without demand or reminders. As long as the landlord and tenant are agreeable, they can choose the time, place and method of rent payment.

Late Rent

There are no South Dakota landlord tenant statutes on imposing charges for late rent payments.

If the landlord wants to impose late rent charges, it has to be specified in the tenancy agreement. While there are no state laws on late fees, landlords cannot overcharge or impose unfair terms. Otherwise the tenant can refuse to pay and challenge the late fees in court.

Most states consider reasonable late fees to be around 3 to 5% of the rent amount. In addition, landlords should wait until rent payment is at least three days late before charging late fees.

Raising Rent

According to the South Dakota Landlord Tenant Act, the landlord can choose to raise the rent by any amount.

If the landlord wants to increase the rent, he or she has to inform the tenant in writing at least 30 days in advance. After being informed of the rent increase, the tenant has to give the landlord a written notice to quit within 15 days if the tenant wants to terminates the rental agreement. In this case, tenancy shall terminate on the first day of next month. [SD 43-32-13]

For a fixed term tenancy, the landlord isn't allowed to raise the rent until the tenancy expires.

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Property Maintenance

Landlord Duties and Responsibilities

The South Dakota Landlord Tenant Act requires the landlord to maintain the property in a safe and habitable condition [SD 43-32-8]:

• Repairs: Make all repairs to keep the property safe and habitable
  
• Common Areas: Keep all common areas clean and safe
  
• Maintenance: Maintain all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, kitchen facilities in safe working condition

Tenant Duties and Responsibilities

South Dakota landlord tenant law also requires the tenant to keep the property in a clean and safe condition [SD 43-32-10]:

• Proper Usage: Use all facilities and appliances properly. This includes keeping all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, kitchen and common area facilities in good working condition
  
• Repairs: Repair all property damages due to negligence, misuse or abuse by the tenant, occupants or tenant's guests

If Landlord Fails to Maintain Property

If the landlord fails to maintain the property, the tenant can give the landlord a written notice stating the problem and giving the landlord reasonable amount of time to repair it. [SD 43-32-9]

If the landlord fails to make repairs in time, the tenant will have two choices:

1. The tenant can make repairs and deduct the cost from rent or recover it from the landlord

If the repairs cost more than one month's rent, the tenant can deposit the rent into a separate bank or savings account (instead of giving it to the landlord). After depositing the rent, the tenant has to give the landlord a written notice stating why rent is being withheld. The money in this account shall be given to the landlord once he or she has made repairs. Otherwise it shall accumulate until there are enough funds for the tenant to pay for repairs.

2. The tenant can terminate the rental agreement

In this case, the landlord has to return all security deposits and prepaid rents (after deductions) to the tenant.

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Property Access

When Tenant's Permission is Required

Unless there is an emergency or the tenant cannot be contacted, the landlord or landlord's agent must inform the tenant in writing at least 24 hours in advance before entering the property. This written notice must state the entry date, entry time, entry reason and how the tenant can change the entry time.

The landlord can only enter the property with the tenant's consent and during reasonable hours. [SD 43-32-32]

When Tenant's Permission is NOT Required

According to South Dakota landlord tenant law, the landlord may enter the property without permission in the following situations [SD 43-32-32]:

• Emergencies such as smoke, fire, flooding or explosion
  
• Tenant cannot be contacted by normal means

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Subletting

There are no specific South Dakota landlord tenant laws on subletting.

We recommend that the landlord and tenant work out the following details and include them in the rental agreement:

• Is the tenant allowed to sublet the property? If yes, is the landlord's written consent required before the tenant can sublet?
• Is the landlord allowed to screen and reject every prospective subtenant?
• Can the landlord ask for additional rent and security deposit if the tenant sublets?
  

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Termination of Tenancy

Number of Days for Notice to Quit

Before terminating a tenancy, South Dakota landlord tenant law requires you to give the other party a written notice to quit in advance [SD 43-32-13] [SD 43-32-15]:

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Eviction

According to South Dakota landlord tenant law, the following are valid reasons for evicting tenants and the minimum number of days for giving them a notice to quit [SD 21-16-1] [SD 21-16-2]:

Unlawful Eviction

According to XXXXX landlord tenant law, the landlord CANNOT force the tenant to move out by shutting off utilities (electricity, water, gas, sanitation), changing the locks or taking possession of the property by force without a court hearing. [SD 43-32-6]

If the landlord forces the tenant to move out with unlawful methods or shuts off utilities, the tenant can EITHER

1. regain possession of the property OR
2. terminate the tenancy agreement

In addition, the tenant can also recover two month's rent PLUS any prepaid rents and deposits from the landlord.

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Abandonment

When is it Abandonment?

There are no specific South Dakota landlord tenant laws on when the property is considered abandoned by the tenant.

We recommend that the landlord and tenant work out the following details and include them in the rental agreement:

• When is the property considered abandoned by the tenant? - Tenant hasn't paid rent for X days, Tenant has been absent from the property for X days (without informing the landlord)
• After the property is abandoned, does the tenant have to continue paying rent until the landlord finds a new tenant?

Dealing with Abandoned Belongings

If the tenant's abandoned belongings are worth $500 or less, the landlord can dump, sell or give them away after 10 days. [SD 43-32-25]

If the belongings are worth more than $500, the landlord has to store them for 30 days before dumping, selling or giving them away. If the tenant claims his or her belongings within 30 days, the landlord can charge the tenant for their handling and storage costs. [SD 43-32-26]

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Resources

South Dakota Landlord Tenant Law: South Dakota Lease of Real Property Laws

Eviction: South Dakota Eviction Process

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