Landlords in South Dakota can’t just change the locks, toss your belongings out on the front yard, or shut down essential utilities. A landlord must follow the eviction process in order to have a tenant evicted for any reason. Here's an overview of what this means for tenants in South Dakota.
Written by Upsolve Team.
Updated December 22, 2021
If a tenant in South Dakota doesn’t pay their rent or violates a term in their lease, they face the prospect of being evicted. This article provides an overview of South Dakota’s eviction process, including what legal rights renters and tenants have. This article focuses on evictions that are the result of being behind on rent or because the lease is about to end.
What Is Eviction?
When an eviction occurs, a landlord takes legal action to remove a renter or tenant from the landowner’s property. South Dakota has several state laws that outline how the landlord must proceed when evicting a tenant. If the landlord doesn’t follow these steps, they could get into legal trouble for an illegal eviction.
Who Can Be Evicted in South Dakota?
Generally speaking, the eviction process only applies when there’s a landlord-tenant relationship. This relationship is a legal contract between a renter and landlord where the landlord agrees to rent property to a renter under certain terms and conditions. In many cases, these terms and conditions are set out in a written contract, often referred to as a lease or rental agreement.
In certain situations, non-tenants can also be evicted. This might occur if someone is living with a tenant and didn’t sign the lease.
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Why Can Someone Be Evicted in South Dakota?
Tenants can get evicted in South Dakota for many reasons. But the three main reasons for being evicted include:
Being behind, short, or late with rent.
Breaching a term of the lease, not including the requirement to pay rent.
Continuing to live on the rental property despite having a lease that’s just ended or expired.
The eviction process is the same regardless of which of the above reasons the landlord uses to evict a tenant. The only major difference is how much notice the tenant gets before the eviction process starts.
Late, Short, or Behind on Rent?
Not being current with rent is one of the most common reasons for evictions in South Dakota. Unlike many other states, South Dakota offers tenants a three-day grace period to pay rent before it’s legally considered late. As long as a tenant pays the full amount of rent due within 72 hours of its due date, the landlord can’t evict them for nonpayment of rent. A longer grace period may be set out in the lease agreement between tenant and landlord.
Lease Expiration or Termination
Another common reason tenants get evicted is if they continue to use a rental property despite no longer having a lease agreement with the landlord. This usually occurs when the lease expires or is terminated.
A lease expires when its term ends, but the landlord decides not to renew or extend it. If this happens, the tenant must move out or face eviction, even if the tenant is current with rent and hasn’t breached the lease.
When a landlord terminates a lease, they end it early. This often takes place when the tenant commits one or more lease violations. An example would be if an apartment complex has a no-pet policy, and the tenant secretly keeps a dog in their apartment.
The South Dakota Eviction Process
Evictions occur with both commercial and residential properties. But the following sections will only discuss the residential eviction process for South Dakota.
What does a landlord have to do to begin an eviction?
Before the landlord can evict the tenant, they must give proper written notice. Most evictions in South Dakota result from unpaid rent, a breach of the lease, or a tenant not leaving the property after their lease ends. If you’re being evicted for any of these reasons, your landlord has to give you a 3-day notice.
In South Dakota, landlords aren’t required to allow you to stop the eviction by curing a breach of the lease or becoming current with rent. Curing a breach means fixing the issue. So you’ll have three days after receiving this eviction notice to leave the property. If you don’t, you’ll face an eviction lawsuit.
The landlord must also deliver the eviction notice in a certain way. A simple front-door visit, text message, or phone call won’t work. Instead, the landlord must have someone serve the tenant with the eviction notice.
Most of the time, a sheriff’s deputy or constable will try to serve the notice by personally handing you a copy or giving it to whoever is living at the rental property. If this isn’t possible, then a second attempt must be made. Here, the sheriff’s deputy or constable may give the notice to someone living at the property if they’re present or post the notice in a visible place at the rental property. In either case, they must also mail you a copy by first-class mail at the rental property. Also, the second attempt must take place at least six hours after the first attempt.
What happens once the eviction action is filed with the court?
Also called a Forcible Entry and Detainer action, an eviction lawsuit starts when the landlord files a complaint with the court. These complaints are typically filed in a circuit court and a magistrate judge presides over the eviction hearing. After the landlord files a complaint, the court will issue a summons. This is a court paper that informs the tenant they’re being sued and explains what they can do in response to the complaint.
After the court issues the summons, the landlord has 30 days to serve it and the complaint on the tenant. This process is similar to serving the tenant with the eviction notice, but with two main differences. First, any second attempt to serve the tenant must take place at least one week after the first attempt. Second, the landlord can serve the tenant by publishing a copy of the complaint and summons in a legal newspaper from the county where the rental unit is located.
In most cases, after getting served with the summons and complaint, the tenant has four days to file an answer with the court and serve a copy of the answer on the landlord. But if the tenant was served through publication in a local legal newspaper, the tenant has 30 days to file and serve the answer.
An answer is an official legal response to the allegations made in the eviction complaint. If you have any legal defenses to the eviction, you must list them in the answer. The court will only schedule an eviction hearing if you file and serve the answer. If you don’t respond to the complaint, there’s no eviction trial and the court will likely enter a default judgment in the landlord’s favor.
Even if you file and serve an answer, you still need to appear at the eviction hearing. If you don’t, you again risk the court entering a default judgment granting the eviction.
The eviction trial begins with the landlord telling the court why you should be evicted. If they have evidence to support their claims, this will be the time they provide it to the court. After they present their case, it’s your turn to submit evidence to the court proving the defenses first identified in the answer. After each party tells their side of the story, the magistrate judge will make a decision.
Telling Your Side of the Story: Affirmative Defenses and Counterclaims
When you prepare your answer, you’ll have your first chance to list your defenses to the eviction. Then in court, you’ll get your chance to not only explain your defenses but also prove how and why they apply to your case. Your defenses will typically take one of two forms.
First, there are affirmative defenses. These are legal defenses that you must raise on your own. If they’re accepted by the court, they can stop the eviction. For example, it’s illegal in many cases for a landlord to get revenge against a tenant by evicting them. So if you can prove that the landlord evicted you because you filed a complaint with a government agency about unsanitary conditions at the rental unit, then the court would deny the landlord’s attempt to evict you.
Second, there are counterclaims. These are separate legal claims from the eviction, but they may rely on facts relating to the eviction lawsuit. One such counterclaim is illegal eviction. Even if the landlord is legally justified in evicting you, they can’t use illegal methods to do it. So if the landlord changed the locks of your apartment, then you’d have a separate legal claim against the landlord and could recover monetary damages.
What Happens After an Eviction Trial?
If the landlord wins the case, the court will issue a lockout order. Also called an Execution for Possession, this is a court order giving the local sheriff the authority to physically remove you and your belongings from the property if you still refuse to leave. If applicable, the court may also grant a monetary judgment in the landlord’s favor for any unpaid rent and/or the landlord’s attorney’s fees and court costs.
If either side disagrees with the magistrate judge’s decision, they may file an appeal to the circuit court.
Practical Tips for Tenants Facing Eviction in South Dakota
If you want to fight the eviction, you’ll need evidence to support your legal defenses. So the moment you learn that you might get evicted, you need to gather all potential evidence. This includes obtaining documents, photographs, videos, screenshots, and any other evidence that’ll support your claims. If you plan on discussing the condition of the rental property in court, it’s a good idea to contact your local municipal building inspector and ask them to visit the property and prepare a report about its conditions.
But to present your defenses, you need to appear in court. If you can’t, contact the court and ask for a continuance. If you get a continuance, the court reschedules a hearing or other court deadline for a later date. If you have a reasonable excuse for being unable to show up on your scheduled court date, the court should reschedule the eviction hearing. But even if they can’t, it helps to let the court know you won’t be there. This makes it less likely that the judge will grant a default judgment for the landlord.
Be willing to communicate with your landlord. This can sometimes help you avoid eviction altogether. If moving out is inevitable, good communication may help you negotiate a more favorable timeline to leave. iFor instance, your landlord may be willing to drop their eviction lawsuit if you agree to move out by a certain date. Not only might this give you more time to find a new place to live, but it keeps the eviction out of your rental history.
If you reach an agreement with your landlord, whether it’s more time to pay rent or fix your breach of the lease, get the agreement in writing and be sure to sign it and have your landlord (or their representative, like a property manager) sign it as well.
If you get the chance to make up past rent payments, make extra sure you don’t miss any deadlines. Also, confirm who you need to make these payments to, whether it’s your landlord, a court official, or an escrow company. Finally, after making a payment, get a receipt that shows who you made the payment to and when.
Lastly, don’t be afraid to ask for help. Eviction is a common legal challenge, so there are many nonprofit organizations and tenant’s rights lawyers willing to give legal advice about the eviction process and explain South Dakota law. In addition to legal services, they can also help you find any rental assistance programs.