South Dakota Residential Lease Agreement

Introduction

This comprehensive guide covers all essential requirements and legal obligations for residential lease agreements in South Dakota. The information is based on South Dakota Codified Laws (SDCL), particularly Chapter 43-32 governing the lease of real property. All landlords and tenants should familiarize themselves with these requirements to ensure compliance with state law.

Required Disclosures

Lead-Based Paint Disclosure

For residential properties built before 1978, federal law requires landlords to provide tenants with information about lead-based paint hazards. This includes providing an EPA-approved information pamphlet and disclosing any known lead-based paint or lead-based paint hazards in the dwelling. Tenants must be given 10 days to conduct a lead-based paint inspection or risk assessment at their own expense. Both parties must sign a disclosure form acknowledging compliance with these requirements. ^[1]

Security Deposits

Maximum Security Deposit Amount

South Dakota law generally limits security deposits to one month's rent. ^[3] However, landlords may request a larger security deposit where special conditions pose a danger to the maintenance of the premises. Any agreement to exceed the one-month limit must be mutual and documented in writing with a clear justification for the special circumstances.

Return of Security Deposit

After the tenant vacates the property and returns the keys or provides a forwarding address, the landlord must return the security deposit within two weeks (14 days). ^[4] This timeline applies to residential leases. For commercial properties, the return timeline is 60 days. Failure to return the security deposit within the required timeframe may result in the tenant recovering the full deposit amount plus damages up to $200 and court costs.

Itemized Deduction Statement

If the landlord intends to withhold any portion of the security deposit for damages or unpaid rent, they must provide the tenant with an itemized list of deductions within 45 days of the lease termination. ^[4] For commercial properties, this timeline extends to 90 days. The itemized statement must detail the specific damages, repairs, or charges being deducted from the deposit. South Dakota law does not require landlords to hold security deposits in separate accounts or pay interest on deposits, but landlords may voluntarily choose to do so.

Penalty for Non-Compliance

If a landlord fails to comply with the security deposit return requirements, the tenant may file a lawsuit to recover the deposit. ^[4] Upon successful litigation, the tenant may recover not only the full security deposit amount but also additional damages of up to $200 plus court costs. This penalty is designed to encourage landlords to comply with the statutory requirements and protect tenants from improper retention of deposits.

Rent Payment Terms

Due Date and Grace Period

Late Fees

Returned Check (NSF) Fees

South Dakota law does not contain specific statutes governing fees for returned checks (non-sufficient funds or NSF checks) in the residential landlord-tenant context. Landlords may include reasonable NSF fee provisions in the lease agreement. Such fees typically range from $25 to $40 and should reflect the actual costs incurred by the landlord, including bank fees and administrative expenses. After receiving a returned check, landlords may also require future rent payments to be made in certified funds, cashier's check, or money order.

Rent Increases

For month-to-month tenancies, landlords must provide 30 days' written notice before increasing the rent. ^[6] This notice requirement ensures that tenants have adequate time to decide whether to accept the new rental rate or seek alternative housing. For fixed-term leases, rent cannot be increased during the lease term unless the lease agreement specifically provides for such increases. Rent increases must not be retaliatory or discriminatory in nature.

Tenant's Right to Withhold Rent

Conditions for Withholding Rent

South Dakota law allows tenants to withhold rent and place funds in escrow when the landlord fails to maintain the premises in a habitable condition. ^[7] Before withholding rent, the tenant must provide written notice to the landlord specifying the conditions that require repair to make the premises fit for habitation. The landlord must be given a reasonable amount of time to complete the necessary repairs.

Repair and Deduct Remedy

If the cost of repairs is less than one month's rent and the landlord fails to make repairs after receiving written notice, the tenant may arrange for the repairs and deduct the cost from the rent payment. ^[7] The tenant should obtain receipts and documentation for all repair costs. This remedy is limited to repairs that are necessary to maintain the habitability of the premises.

Escrow Account for Major Repairs

For repairs requiring more than one month's rent, after providing written notice to the landlord, the tenant may withhold rent and deposit it into a separate bank account. ^[7] The tenant must provide the landlord with written proof of each deposit into this escrow account. If the landlord completes the repairs, the tenant must release the withheld rent to the landlord. If the repair has not been completed and enough money has accumulated in the escrow account, the tenant may use the funds to pay for the repair. Tenants who withhold rent improperly may be subject to eviction for non-payment.

Landlord's Right to Enter

Notice Requirements

South Dakota law requires landlords to provide reasonable notice before entering a rental property. ^[8] Specifically, 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 date of entry, time of entry, reason for entry, and how the tenant can request to change the entry time.

Permissible Reasons for Entry

Landlords may enter the rental property for specific legitimate purposes, including: inspecting the premises, making necessary repairs or alterations, showing the property to prospective tenants or purchasers, and responding to emergencies. ^[8] Entry must occur during reasonable hours unless there is an emergency. The tenant's consent is generally required except in emergency situations where immediate entry is necessary to prevent damage or injury.

Emergency Access

In emergency situations, the landlord may enter the rental property immediately without providing advance notice. ^[8] Emergencies include situations such as fire, flooding, gas leaks, or other conditions that pose an immediate threat to the property or the safety of occupants. Even in emergency situations, landlords should attempt to notify tenants as soon as practicable.

Breaking a Lease

Eviction for Non-Payment of Rent

When a tenant fails to pay rent, the landlord must first wait until the rent is 3 days late. After this 3-day period, the landlord may serve the tenant with a 3-day notice to quit for non-payment of rent. ^[5] This notice informs the tenant that they have 3 days to either pay the overdue rent or vacate the premises. If the tenant fails to comply with the notice, the landlord may then file an eviction lawsuit in court. The tenant does not have the option to pay and remain after receiving this notice; it is an unconditional quit notice.

Eviction for Lease Violations

For violations of the lease agreement other than non-payment of rent, the landlord must serve the tenant with a 3-day notice to quit. ^[5] This notice must specify the violation and inform the tenant that they must vacate within 3 days. Material violations may include unauthorized occupants, pets when prohibited, property damage, illegal activities, or other breaches of the lease terms. After the 3-day period expires without the tenant vacating, the landlord may proceed with filing an eviction action.

Tenant Responsibilities During Lease Term

Tenants remain responsible for maintaining the rental property throughout the lease term and must not cause damage beyond normal wear and tear. Tenants are also responsible for ensuring that guests and other occupants comply with lease terms. Even if a tenant wishes to break the lease early, they generally remain liable for rent through the end of the lease term unless they can find a suitable replacement tenant acceptable to the landlord or reach a mutual agreement to terminate the lease early.

Prohibition Against Self-Help Eviction

South Dakota law prohibits landlords from using self-help eviction methods such as changing locks, removing tenant belongings, shutting off utilities, or physically removing tenants from the property. Landlords must follow the proper legal eviction procedures through the court system. Tenants who are unlawfully locked out or subjected to other self-help eviction tactics may have legal remedies against the landlord, including damages and the right to re-enter the premises.

Lease Termination

Month-To-Month Tenancies

Fixed-Term Leases

Fixed-term leases (such as one-year leases) automatically terminate at the end of the specified lease term. Unless the lease agreement requires notice of non-renewal, neither party is obligated to provide advance notice of their intent not to renew. However, it is good practice for both parties to communicate their intentions well before the lease expiration date. If both parties continue the tenancy after the fixed term expires without signing a new lease, the tenancy typically converts to a month-to-month arrangement under the same terms as the original lease.

Military Personnel and Families

South Dakota law provides special protections for active-duty military personnel and their families. Landlords must provide at least two months' written notice before terminating a month-to-month tenancy when the tenant is an active-duty military service member or their family member. This extended notice period recognizes the unique challenges faced by military families, including deployment and relocation requirements. Federal law under the Servicemembers Civil Relief Act (SCRA) also provides additional protections for military personnel.

Abandoned Property

When a tenant vacates the premises and leaves behind personal property, the landlord must follow specific procedures before disposing of the items. For property valued at less than $500, the landlord may dispose of the property after holding it for 10 days and making reasonable efforts to notify the former tenant. For property valued at $500 or more, the landlord must hold the property for 30 days and provide written notice to the tenant at their last known address before disposing of the items. The landlord may charge the former tenant reasonable storage fees for holding abandoned property.