Breaking a Lease Early in South Dakota

Last Updated: September 22, 2023 by Phil Ahn

In South Dakota, a tenant can end a fixed-term lease early, without penalty, if one of several conditions is met, such as a privacy violation by the landlord. If none of the conditions are met, the tenant is liable for all remaining rent until a new tenant is found.

1. Active Military Duty

In South Dakota, as with all states, a tenant can break a lease early, without penalty, due to military duty. Under federal law, active service members who are relocated due to deployment or permanent change of station may break a lease early
[1]
. The protection begins on the date on which the tenant enters active duty and ends between 30-90 days after the date of discharge.

What Qualifies as Military Duty?

To qualify to break a lease early in South Dakota for military duty, all of the following conditions must be met
[2]
: 

1. Servicemember Status. A tenant must be an active-duty member of the military, Reserve, National Guard (mobilized under federal orders for more than 30 consecutive days), or be a commissioned officer of the Public Health Service or the National Oceanic and Atmospheric Administration. 
2. Deployment. The tenant must receive a permanent change of station (“PCS”) order or deployment order for a period of at least 90 days.
3. Prior Signed Lease. A tenant must have signed the lease prior to active military service.

How to Prove or Verify Military Duty

To prove or verify military duty in South Dakota, a tenant must give the landlord both of the following:

1. A military ID (example)
2. Permanent Change of Station (PCS) orders (example) OR a letter from the tenant’s commanding officer (example)

If a landlord doubts the authenticity of a tenant’s request to terminate a lease due to military duty, the landlord may submit a Record Request to obtain a report certifying the tenant’s active duty status. However, the landlord must create an account to use the Record Request.

How to Terminate a Lease Due to Military Duty

To terminate a lease early for military duty, a tenant must provide a landlord written notice and proper documentation. However, the lease does not terminate immediately. Once notice is delivered, the earliest a tenant 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.

2. Early Termination Clause

In South Dakota, a tenant can break a lease early, without penalty, due to an early termination clause. However, a tenant can only break the lease if an early termination clause exists in the lease. A landlord is not required to include an early termination clause in a lease under South Dakota law.

An early termination clause allows a tenant to terminate a lease early in exchange for paying a penalty. Generally, an early termination clause allows a tenant to break a lease anywhere from 30-60 days after providing notice.

Early Lease Termination Agreement

If a lease does not contain an early termination clause, and both the landlord and the tenant would like to end the lease, they may agree to a “mutual termination” to end the lease. In this case, the landlord and tenant write down the terms of the termination agreement, sign the agreement, and comply with the agreed-upon terms to terminate the lease.

3. Domestic or Sexual Violence

In South Dakota, a tenant can break a lease early, without penalty, due to domestic or sexual violence. South Dakota law protects tenants who are victims of domestic violence, sexual assault, stalking, or sexual abuse so long as the tenant can provide the landlord with proof of the abuse
[3]
.

What Qualifies as Domestic Violence?

In South Dakota, for an act of domestic violence to qualify as grounds for breaking a lease, all must be true:

1. It is committed against the tenant or child of a tenant by a household member
2. It is intended to result in harm, injury, or sexual assault OR it reasonably places the victim in fear of imminent harm or assault

How to Prove or Verify Domestic Violence?

A tenant can prove or verify domestic violence by providing the landlord with one of the following:

• Documentation of the stalking, assault, or abuse from a licensed healthcare provider or someone who is otherwise qualified
• A copy of a court issued:
  • Temporary injunction
  • Temporary ex parte order
  • Protective order or
  • An order of emergency protection

The court documents are not public record and a landlord cannot request the documents from the court. However, the orders are official court documents signed and stamped by a judge. To verify, a landlord can look at a list of current judges in the state.

To further verify if the court documents are legitimate, a landlord may call the court and ask the clerk to confirm the issue was ordered.

Documents from a licensed healthcare provider or someone who is otherwise qualified will be signed by the healthcare provider. While the provider will not talk to the landlord about the incidents leading to the documentation, a landlord may call the provider to verify the validity of the document.

4. Uninhabitable Living Conditions

In South Dakota, a tenant can break a lease early, without penalty, due to uninhabitable living conditions if all of the following are true:

1. Certain health and safety codes are not met
2. The tenant notifies the landlord about the issue
3. The landlord fails to make repairs within a reasonable period of time
   [4]
   

Almost all states have an implied warranty of habitability that requires landlords to keep a rental property in a livable state regardless of what the lease says. However, South Dakota has no implied warranty of habitability.

What Qualifies as Uninhabitable Living Conditions

In South Dakota, certain statutes set forth specific instances that qualify as uninhabitable living conditions. To start, a unit must fail to meet certain physical health and safety standards under the implied warranty of habitability that are not as a result of the tenant’s actions or negligence.

Here are a few examples of minimum habitability requirements that a landlord must provide:

• Hot and cold running water
• Working plumbing and electric
• Adequate gas lines
• Working sanitation facilities

Any situation that materially affects the physical health or safety of an ordinary tenant makes that rental unit uninhabitable. For example, if the rental unit contains dangerous mold, it will be considered uninhabitable.

To break a lease for uninhabitable conditions, the landlord must notify the landlord. The notice must be in writing of the condition. Landlords have a reasonable amount of time to repair the problem.

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How to Prove or Verify Uninhabitable Living Conditions

In Rhode Island, to prove or verify uninhabitable living conditions, a tenant must show all of the following:

1. Proof of the issue (i.e., a photo)
2. Proof the tenant gave notice of the issue to the landlord (i.e., certified mail)
3. Proof the issue remains

Upon receiving notice, the landlord may verify the conditions by inspecting the property. If the tenant intends to make the repair themselves, the tenant must provide the landlord with a copy of the repair bill and receipt for the payment.

How to Terminate a Lease Due to Uninhabitable Living Conditions in Rhode Island

If a tenant wishes to terminate their lease early due to uninhabitable living conditions, they must notify the landlord in writing. The letter should state that they are terminating the lease due to the landlord’s failure to address the conditions, and if possible, include evidence of the violation and a repair request notice.

The tenant is entitled to a prorated refund of rent from the date of termination or the date the tenant moves out, whichever is later.

If the landlord disputes the legitimacy of the uninhabitable conditions, they may file a complaint with the Rhode Island District Court asking a judge to determine whether the unit is truly uninhabitable.

5. Tenant Death

In South Dakota, a tenant’s estate can terminate a lease early, without penalty, if a tenant dies before the expiration of the lease
[5]
.

What Qualifies as Tenant Death?

In South Dakota, a tenant’s death will qualify as a legitimate reason to terminate the lease so long as the tenant who signed the lease was the sole occupant over the age of 18. If minors live with the deceased, the landlord will work out the details with the minors’ new legal guardian(s).

How to Prove or Verify a Tenant Death

To show proof or verify tenant death, the estate may provide the deceased tenant’s death certificate to the landlord or the landlord may request a tenant’s death certificate from the South Dakota Office of Vital Records upon request.

The personal representative of the deceased tenant’s estate, also known as an executor or administrator, should provide the landlord with a copy of the tenant’s will or a court order naming the person and describing their role as a representative of the estate.

How to Terminate a Lease Due to a Tenant Death in South Dakota

In South Dakota, in order for a representative of the estate to terminate a lease early due to tenant death, they must provide the landlord with written notice within a reasonable time after the death.

Termination of the lease is not effective immediately. The lease becomes a part of the tenant’s estate and will be managed by the executor of the estate. Therefore, it is up to the executor of the estate to release and terminate the tenancy.

If released, the tenant’s estate will still be liable for any past-due rent and any damages to the premises that are beyond normal wear and tear. Until the lease is fully terminated, the tenant’s estate will still be responsible for rent.

6. Unenforceable or Voidable Lease

In South Dakota, a tenant can break a lease early, without penalty, if there are unenforceable clauses or provisions that make the lease voidable. Specifically, a tenant can break a lease early if the lease was signed under duress, if the tenant is a minor, or if the unit is illegal.

What Qualifies as Unenforceable or Voidable Lease

In South Dakota, a lease would be deemed unenforceable or voidable if any of the below are true:

• A tenant was forced to sign the lease under duress. Duress means there is coercion through physical force or an unlawful threat that eliminates one’s free will to do what they want.
• The party signing the lease is a minor. In South Dakota, a minor is someone under the age of 18. With regards to leases, anyone can sign one, including a minor. Because leases are generally viewed as contracts, and a minor cannot be bound by their contracts, the law will automatically allow the minor to void the contract, if they choose.
• The unit is illegal. An illegal unit is one that is used for residential purposes but is not registered with the proper authorities as required by law. These are units that don’t comply with legal requirements for housing, such as too-low ceilings, no address, no dedicated gas/electric meter, or improper electric systems.

How to Prove or Verify an Unenforceable or Voidable Lease

To prove or verify that the lease was signed under duress, a tenant must be able to show that they did not sign the lease of their own free will. A tenant must show that a threat of harm made by the other party was the reason they entered into the contract.

To prove or verify that the party signing the lease was a minor, the easiest way will be to provide a birth certificate showing exactly when the tenant was born. Once confirmed as a minor, they will then be given the choice of whether they want to void the lease.

To prove or verify that the unit is illegal, a tenant can search public files at the local housing inspection department or agency. A tenant can search these files online by locating the “Certificate of Occupancy” document. Generally, every city or county will have a database where an individual can input the address of the property in question. Simply search “[the county or city name] + certificate of occupancy.”

How to Terminate a Lease Due to an Unenforceable Clause or Void Lease

If a lease is considered void or unenforceable, it is immediately terminated, as if the lease was never signed. Therefore, the tenant can move out immediately and no longer have to pay rent.

Furthermore, because the agreement is viewed as never in existence, any security deposits paid should be returned. The first step is asking the landlord to return the security deposit. However, if the landlord claims they do not owe you money, you may have to resort to filing a lawsuit in small claims court.

7. Landlord Harassment or Privacy

In South Dakota, a tenant can terminate a lease early due to landlord harassment or privacy violations
[6]
. However, a court must determine whether landlord harassment occurred before a tenant can break the lease.

What Qualifies as Landlord Harassment

In South Dakota, the following behavior qualifies as landlord harassment:

• Landlord Entry. In South Dakota, landlords are required to provide notice (generally 24 hours) before entering a tenant’s home. Repeatedly entering a tenant’s home without notice qualifies as landlord harassment.
• Constructive Eviction. A landlord cannot remove exterior windows or doors, turn off utilities or change the locks without prior tenant permission under South Dakota law. This type of behavior constitutes constructive eviction and qualifies as landlord harassment under South Dakota law.
• Engaging in Discrimination. Under the Fair Housing Act, a landlord may not discriminate against a tenant based on race, religion, national origin, and gender. This type of behavior qualifies as landlord harassment.

How to Prove or Verify Landlord Harassment

A tenant may prove or verify landlord harassment by keeping written records of any harassment or taking photos, if possible. At the hearing, a landlord may be able to counter this with similar evidence.

For example, a tenant may provide a court with pictures of an exterior door with no locks. In turn, the landlord may present evidence that the landlord was required to change the locks and show the court a receipt from a locksmith with an installation date for a new lock.

How to Terminate a Lease Due to Landlord Harassment

To terminate a lease for landlord harassment, a tenant must get court permission. The tenant must file a complaint with the Consumer Protection Division and can file a form online. The tenant must then file notice to the landlord of the complaint. At a later date, a hearing will be held to determine whether landlord harassment was committed.

8. Mental or Physical Disability

In South Dakota, as with all other states, a tenant can break a lease early, without penalty, because of a physical or mental disability.

Practically speaking, a tenant with a disability could request to terminate the lease if they can no longer function in a regular rental unit and need specialized care.

What Qualifies as a Physical or Mental Disability?

Under both the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), persons with disabilities are eligible for reasonable accommodations. A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to enjoy where they live.

A person with a disability is an individual with a physical or mental impairment that substantially limits one or more major life activities. These individuals must have a record of the impairment. A record can constitute hospitalization records and documented time off as a result of the disability.

A physical or mental impairment includes diseases and conditions such as:

• Visual, speech, or hearing impairments
• Cerebral palsy
• Autism
• Epilepsy
• Muscular dystrophy
• Multiple sclerosis
• Heart disease
• Diabetes
• HIV

How to Prove or Verify Physical or Mental Disability

When proving or verifying disabilities, there are two methods by which to do so:

1. The disability is obvious and apparent. If a person’s disability and need for the requested accommodation is obvious and readily apparent, then the landlord may not request any additional information. These would most likely be physical impairments that one could easily identify as being limiting to the tenant.
2. Request verification of disability. If the disability and the need for the requested accommodation is not so obvious and readily apparent, the landlord can only request information that is necessary to evaluate the disability. Provided information will generally be from a medical professional or reliable third party who is in a position to know about the individual’s disability. These disabilities would usually encompass some sort of mental disability.

How to Terminate a Lease Due to a Physical or Mental Disability

If a tenant has a qualified disability, the tenant may request early termination as a reasonable accommodation under the FHA or ADA. Once the landlord receives this letter, then they will terminate the lease.

However, in the event the landlord refuses to honor the legitimate early termination of the lease, you may have to file a Fair Housing complaint or sue in court.

9. Landlord Retaliation

In South Dakota, a tenant can break a lease early, without penalty, if a landlord retaliates against the tenant
[7]
. South Dakota law does not allow a landlord to retaliate against a tenant for exercising their rights under the law.

What Qualifies as Landlord Retaliation?

South Dakota law sets forth specific instances that qualify as landlord retaliation. First a tenant must do one of the following:

• Exercise or attempt to exercise their rights under the law
• Request a repair or remedy under law or the lease
• Complain to a governmental entity responsible for enforcing building or housing codes, a public utility, or a civic or nonprofit agency

After a tenant exercises one of these rights, any of the following actions may qualify as landlord retaliation:

• Filing, or threatening to file, an eviction proceeding
• Banning the tenant from common areas
• Decreasing services (e.g., shutting off heat or hot water)
• Refusing to make repairs
• Increasing rent
• Terminating the lease

How to Prove or Verify Landlord Retaliation

In South Dakota, a tenant can establish a case for landlord retaliation by providing evidence of the rights exercised under the law. This could include documentation of a complaint filed with a governmental agency, an eviction proceeding, or an altered lease.

However, if the landlord can prove that the action was not taken for purposes of retaliation, they will not be held liable. This would require the landlord to provide evidence that they intended to take the same action before the tenant’s actions.

A landlord may also show that they exercised certain lawful rights through any of the following:

• Increasing rent under an escalation clause in a written lease for utilities, taxes, or insurance
• Increasing rent or reducing services as part of a pattern of rent increases or service reductions for an entire multi-unit building
• An otherwise valid eviction or lease termination because the tenant is delinquent in rent, intentionally damages property, or materially breaches the lease

How to Terminate a Lease Due to Landlord Retaliation

To terminate a lease for landlord harassment in South Dakota, a tenant must get court permission. To do so, the tenant must file a complaint or petition with the South Dakota Magisterial District Court.

After the landlord files an answer to the complaint, the court may set a hearing. If a court finds that landlord retaliation occurred, the tenant may terminate a lease and the landlord may be liable for monetary damages.

For example, by law, a tenant may recover one month’s rent plus $500, plus court costs and reasonable attorneys fees as well as moving costs (less any delinquent rents).

Can a Tenant Break a Lease Due to Job Relocation in South Dakota?

A tenant cannot break a lease early due to a job relocation in South Dakota. No laws exist in South Dakota to allow a tenant to automatically break a lease for a new job.

However, some leases contain a “transfer clause” which may allow a tenant to end a lease early if they are relocating for a new job.

Can a Tenant Break a Lease Due to Backing Out of a Lease After Signing?

In South Dakota, a tenant cannot break a lease early after signing the lease but before moving in. However, a tenant may terminate the lease under an early termination clause, if the lease contains one.

Can a Tenant Break a Lease Due to Buying a House in South Dakota?

In South Dakota, a tenant cannot break a lease early due to buying a house unless the lease contains a clause allowing the tenant to terminate the lease early because of a new home purchase.

What Happens if a Tenant Cannot Break a Lease Early?

If there is no legal justification for breaking a lease early, then the tenant will be responsible for the remaining rent due for the lease.

South Dakota does not have a law limiting the amount a tenant owes a landlord when breaking a lease early. A tenant could be liable for paying the remaining rent through the life of a lease. However, a landlord must mitigate damages and seek to replace the tenant.

Landlord’s Duty to Mitigate Damages in South Dakota

In South Dakota, a landlord does not have a responsibility to re-rent their units. Tenants are generally responsible to pay rent owed throughout the life of their lease, even if they move out early. If a tenant breaks a lease early in other states, the landlord must try to re-rent the unit to lessen the rent owed by the original tenant. However, landlords in South Dakota do not have to attempt to re-rent their units.

Tenant’s Right to Sublet in South Dakota

South Dakota state law does not grant tenants, by default, the right to sublease. Instead, they must have explicit, written consent from the landlord to do so. If a tenant is able to sublet the premises, they will not be liable for the total remaining rent due under the lease.

Consequences for Moving Out in South Dakota

In South Dakota, tenants will be held liable for all remaining rent and property damage unless the landlord found a new tenant.

If not, potential consequences include:

• The landlord keeping the security deposit
• The landlord suing the tenant for damages
• A lower credit score
• A potential bad reference