Find out when a tenant can legally break a lease in South Dakota, when they can’t, and if a landlord is required by South Dakota law to make a reasonable effort to re-rent.
Before we address the legally acceptable reasons to get out a lease early without penalty, it’s important to understand the notice requirements in South Dakota to end a tenancy.
Lease Termination Notice Requirements in South Dakota
- Notice to Terminate a Week-to-Week Lease. If no end date is specified in the agreement, then a one-week notice is required to terminate. (SDLRC § 43-32-15)
- Notice to Terminate a Month-to-Month Lease. A 30-day written notice is required. The tenant may give the notice to terminate the lease effective the first day of the next month within 15 days of receiving notice from the landlord of a modification to the lease. (SDLRC §§ 43-32-13 and SDLRC § 43-8-8)
- Notice to Terminate a Yearly Lease with No End date. Any rental agreement for a period longer than a year must be agreed to in writing. (§SDLRC § 43-32-5)
Delivering Notice in South Dakota
In most cases, a written lease agreement should include information and other specifics on how and when to deliver a notice to terminate the tenancy. Some common ways to deliver the notice to the landlord are by mail or by delivering the written notice in person; however, it’s best to review the lease agreement to see which delivery method the landlord prefers.
If notice is not given, it could result in penalties and consequences.
Conditions for Legally Breaking a Lease in South Dakota
There are several scenarios where a tenant can legally break a lease in South Dakota without penalty. We’ll go through each of them below.
1. Early Termination Clause
Some modern lease agreements may provide specific terms that would allow a tenant to terminate a lease early in exchange for a penalty fee. Read over the lease and look for language that outlines agreed-upon terms for ending the lease before the end of the fixed period, such as the amount of the fee (i.e., equal to 2 month’s rent) and the amount of notice required (i.e., 30 days).
If a lease agreement contains an early termination clause, before executing it and paying the penalty fee, read further to learn about other conditions that, if met, would not require a penalty fee to be paid.
2. Active Military Duty
The Servicemembers Civil Relief Act (SCRA) helps protect active service members who are relocated due to deployment or permanent change of station. The protection begins on the date of entering duty and ends between 30-90 days after the date of discharge.
To break a lease in accordance with the relief act, a tenant must:
- Prove the lease was signed before entering active duty.
- Prove they will remain on active duty for at least the next 90 days.
- Deliver a written notice to the landlord (example, page 2), accompanied by a copy of the orders to deploy/Permanent Change of Station (PCS) or a letter from their commanding officer stating their pending deployment.
With that said, the lease does not terminate immediately. Once the notice is delivered, the earliest the lease can terminate is 30 days after the beginning of the next rent period. For example, if the notice was delivered on the 23rd of March, and the rent is due on the 1st of each month, the earliest the lease can terminate is May 1st therefore, rent is still due for the month of April.
In South Dakota, the term “servicemember” means a member of the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard.
3. Unit is Uninhabitable
Most states have specific health and safety codes that provide minimum standards for rental units, and South Dakota is no different.
If those standards are not met, proper notice is given by the tenant and the repairs are still not made within the allowable time period, a tenant would be considered “constructively evicted”. As a result, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their own responsibilities under South Dakota landlord-tenant law.
According to South Dakota state law, landlord duties to provide habitable premises include the following (SDLRC § 43-32-8):
- Habitability. Keep the premises and all common areas in reasonable repair and fit for human habitation and in good and safe working order, except when the disrepair was caused by tenant action or negligence.
- Maintenance. Maintain in good and safe working order and condition all electrical, plumbing, or heating systems of the premises, except when the disrepair has been caused by tenant action or negligence.
For more information on habitability laws in South Dakota, click here.
4. Landlord Harassment or Privacy Violation
If the action is serious enough, harassment by a landlord or their violation of a tenant’s privacy may be enough justification for relieving a tenant of their obligations of the lease.
- Landlord entry. In South Dakota, reasonable notice of at least 24 hours is required in writing, specifying the reason for entry, the dates and time of entry during business hours, and providing the tenant with an opportunity to reschedule. (SDLRC § 43-32-32)
- Changing the locks. In some states, if the locks are changed by a landlord without the tenant’s permission or without the protection of specific language in the lease agreement, this can qualify as being “constructively evicted”, and could relieve the tenant of their duties of the lease. In South Dakota, landlords are not allowed to lockout tenants. (SDLRC § 43-32-6)
5. Other Reasons
A tenant may have alternative reasons to terminate a lease early. For example, the following reasons may legally permit a tenant to terminate the lease early, but are not always automatic and must be determined by a court:
- Violation of the Lease Agreement. If a landlord violates the terms of the lease agreement, it may be enough justification to break the lease and relieve the tenant from their own obligations (i.e. illegally raising the rent during the fixed period).
- Illegal or Unenforceable Contract. In some scenarios, a lease agreement may be deemed illegal and as a result, is generally not enforceable. (i.e. contracting with a minor)
- Mandatory Disclosures. Many state and local laws require landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Disclosure laws typically impose heavy fines or legal ramifications to landlords if they are not followed. In rare cases, they contain penalty provisions that may allow you to break your lease.
- Senior Citizen or Health Issue. Some states offer age or health-related lease-breaking arrangements that permit early lease termination. If a tenant has a qualified disability the tenant may request early termination as a reasonable accommodation under the Fair Housing Act or the Americans with Disabilities Act.
Examples of Insufficient Justification for Lease Breaking in South Dakota
The below reasons are generally not enough justification (on their own) to release a tenant from the obligation of their lease term, and as a result, provide no legal protection against penalties for not honoring the lease.
- They bought a house.
- They are relocating for a new job or school.
- They are upgrading or downgrading.
- They are moving in with a partner.
- They are moving to be closer to family.
Breaking a lease for any of the above reasons without court approval or in any conditions not previously outlined can have tangible consequences for tenants. If a tenant would like to break a lease for any of these reasons, the tenant should ask the landlord to agree to a mutual termination.
South Dakota state law does not require landlords to take reasonable steps to re-rent their unit when a tenant breaks their lease.
Tenant’s Right to Sublet in South Dakota
If the lease does not prohibit subletting, then a tenant might be in the clear to sublet. However, the lease might contain a clause requiring a tenant to obtain a landlord’s approval prior to subletting. To get the landlord’s approval, a tenant shall send them a letter through certified mail, with a return receipt requested, outlining the terms of the sublet lease agreement. Certified mail is the only proof of delivery that most courts will accept that a tenant has notified the landlord.
The letter should include the following information:
- Sublet term.
- Name of proposed subtenant or assignee.
- The permanent home address of proposed subtenant or assignee.
- Your reason for subletting or leaving permanently.
- Your new address during the sublease if applicable.
- The written consent of any co‑tenant.
- A copy of the proposed sublease.
If a landlord rejects the request, know that they can only refuse the proposed subtenant based on legitimate factors. The law states that a landlord cannot unreasonably refuse to sublet.
For more information and to get a FREE South Dakota sublease agreement click here.