Evicting a tenant in South Dakota can take around 5 weeks to 3 months, depending on the reason for the eviction. If tenants request a jury trial, the process can take longer.
Grounds for an Eviction in South Dakota
In South Dakota, a landlord cannot legally evict a tenant without cause. Legal grounds to evict include:
- Not paying rent on time
- Staying after the lease ends
- Violating lease terms
- Sale of the rental unit
- False claims for service animals
Depending on the grounds for eviction, the landlord must give proper notice and provide the tenant a chance to cure the violation.
| Grounds | Notice Period | Curable? |
|---|---|---|
| Nonpayment of Rent | 3 Days | No |
| End of Lease or No Lease | 1 Month | No |
| Lease Violation | None | No |
| Sale of Rental | 3 Days | No |
| False Claims for Service Animals | None | No |
Nonpayment of Rent
In South Dakota, a landlord can evict a tenant for not paying rent on time. Unlike most states, South Dakota lets a landlord file in court for eviction with no notice to the tenant. A landlord may file as soon as any portion of the rent remains unpaid, beginning the day after it’s normally due (unless the lease provides other terms).
South Dakota landlords are not required to give tenants a rent payment grace period. However, if the lease or rental agreement allows for one, then the landlord must honor it.
If rent is due on September 1st, it will be considered late starting on September 2nd, unless the lease specifically states there is a grace period.
End of Lease or No Lease
In South Dakota, a landlord can evict a tenant who does not have a lease (“tenant at will”) or has a lease that has terminated and continues to remain on the premises (“holdover tenant”). To do so, they must first terminate the tenancy by giving a proper 30-day notice to move out.
Once the tenancy ends, if the tenant remains on the property, the landlord can move forward and file an eviction lawsuit.
Lease Violations
In South Dakota, a landlord can evict a tenant for violating the terms of their lease or not upholding their responsibilities under South Dakota landlord-tenant law. No prior notice is required and the landlord may immediately file an eviction action. Landlords are not required to allow the tenant to fix the issue and the tenant must move out.
Examples of lease violations include:
- Having an unauthorized pet, guest or vehicle
- Parking in an unauthorized area
- Not maintaining a certain level of cleanliness
- Illegal activity
- Committing waste
Sale of Rental Unit
In South Dakota, a landlord can evict a tenant if the rental property is being sold and the tenancy will not continue under the new owner. To do so, landlords must provide a 3 days’ notice to move out. Tenants do not have the option to stay and must vacate the dwelling unit.
If the tenant remains on the property after the notice period expires, the landlord may continue with the eviction process.
Falsely Claiming to Need a Service Animal
In South Dakota, landlords can evict a tenant if they falsely claim that they have a disability which requires the use of a service animal. It is unclear under South Dakota state law how much prior written notice, if any, is required before landlords can begin the eviction process in this instance.
If the tenant remains on the property, the landlord may continue with the eviction process. Tenants do not have the option to stay and must vacate the dwelling unit.
Illegal Evictions in South Dakota
In South Dakota, there are a few different types of evictions that are illegal. If found liable, the landlord could be required to pay the tenant damages sustained in an amount equal to 2 month’s rent, plus any advance rent and deposits paid.
“Self-Help” Evictions
A landlord is not allowed to forcibly remove a tenant by:
- Changing the locks
- Shutting off utilities
- Diminishing services
- Removing tenant belongings
A tenant can only be legally removed with a court order obtained through the formal eviction process.
Retaliatory Evictions
It is illegal for a landlord to evict a tenant in response to exercising a legally protected right. These rights include:
- Complaining about a building or housing code that materially affects health and safety to the landlord or any authority tasked to enforce the law
- Complaining to the landlord of a condition requiring a repair
- Pursuing a legal right for the landlord to remedy habitability issues
In South Dakota, all evictions follow the same process:
- Landlord serves tenant written notice of violations
- Landlord files complaint with court for unresolved issues
- Answer is filed
- Court holds hearing and issues judgment
- Execution for Possession is issued
- Possession of property is returned to landlord
Step 1: Landlord Serves Notice to Tenant (Where Required)
A landlord can begin the eviction process in South Dakota by serving the tenant with written notice. South Dakota landlords may deliver a lease termination notice using any of these methods:
- Hand delivery to the other party
- Hand delivery to a person of discretion on the property who can accept the notice on behalf of the other party
- Only if no form of hand delivery is possible: Posting the notice in a conspicuous place on the premises
Landlords should always keep the original signed notice and declaration of service as proof of proper service if the case proceeds to court.
Nonpayment of Rent / Holding Over After Lease Termination
Unlike most states, in South Dakota, a landlord does not have to provide advance notice to a tenant before filing eviction in court for nonpayment of rent or holding over (failing to move out after proper lease termination).
1-Month Notice To Quit
For a tenant with no lease or a month-to-month lease in South Dakota, the landlord must serve them a 1-Month Notice To Quit to end the tenancy. This eviction notice allows the tenant 1 month to move out.
However, for tenants that don’t pay monthly, the amount of notice differs:
| Rent Payment Frequency | Notice Amount |
|---|---|
| Week-to-Week | 7 Days |
| Month-to-Month | 1 Month |
Note, if the at-will tenant is an active military service member or if their immediate family member is an active military service member, the tenant is entitled to two months’ notice.
Immediate Notice To Quit
In South Dakota, a landlord can evict a tenant for a lease violation or for a tenant falsely claiming needing a service animal. In these instances, no prior notice is necessary, and the landlord may immediately proceed with filing an eviction lawsuit with the appropriate court. The landlord does not need to give the tenant an option to fix the issue and the tenant must move out.
Step 2: Landlord Files Lawsuit with Court
As the next step in the eviction process, South Dakota landlords must file a complaint in the appropriate Circuit Court or Magistrate Court. In the state of South Dakota, the filing fee is $70.
The summons and complaint may be served on the tenant by a sheriff constable of the county or anyone authorized by South Dakota law. There should be at least two service attempts made that are at least one week apart and both attempts shall be made within 30 days of the date the summons was issued by the court.
Service can be made through one of the following methods:
- Giving a copy to the tenant in person
- Publishing a copy in a local paper
- Leaving a copy with someone at the rental unit
- Posting a copy in a conspicuous place on the rental unit AND mailing a copy via first class mail
The summons and complaint must be served on the tenant within 30 days of the date the summons is issued by the court.
Step 3: Answer is Filed
South Dakota tenants are required to file a written answer with the court if they want to contest, or object to, the eviction hearing.
The answer must be filed within 5 days of the date the summons was served on the tenant. If the summons was served by publication, the tenant’s answer must be served within 30 days of the date the summons was published in the local paper.
Tenants may request up to a 14-day continuance if they cannot file a written answer within the 5- or 30-day deadline.
If tenants fail to file a written answer with the court, the judicial officer may issue a default judgment in favor of the landlord, meaning the tenant would have to move out of the rental unit without being able to attend an eviction hearing.
A tenant’s answer must be filed within 4-30 days, depending on how the summons was served on the tenant. If tenants request a continuance, this could add another 14 days to the process.
Step 4: Court Holds Hearing and Issues Judgment
The eviction hearing may be scheduled as soon as 2 days after the tenant’s answer is filed with the court.
If the tenant fails to appear for the hearing, the judicial officer may issue a default judgment in favor of the landlord, meaning the tenant will have to move out.
Either the landlord or tenant can request a jury trial, but this will add more time to the process.
If the judge rules in favor of the landlord, an Execution for Possession will be issued and the eviction process will continue.
The eviction hearing may be held two days after the tenant’s answer is filed with the court.
Step 5: Execution for Possession is Issued
The Execution for Possession is the tenant’s final notice to leave the rental unit and gives them the opportunity to remove their belongings before the sheriff returns to the property to forcibly remove the tenant.
If the court has ruled in the landlord’s favor, the court will issue an Execution for Possession. South Dakota state law doesn’t specify how quickly the Execution for Possession will be issued after the ruling in favor of the landlord.
Step 6: Possession of Property is Returned
South Dakota state law doesn’t specify how quickly the Execution for Possession must be enforce once it is received by law enforcement officials; however, the writ can only be served during the daytime.
South Dakota Eviction Process Timeline
In South Dakota, an eviction can be completed in 5 weeks to 3 months but can take longer depending on the reason for eviction, whether the eviction is contested, which days courts are (or aren’t) in session and other various possible delays.
Below are the parts of the South Dakota eviction process outside the control of landlords for cases that go uncontested.
| Step | Estimated Time |
|---|---|
| Initial Notice Period | 0-31 Calendar Days |
| Court Issuing/Serving Summons | 30 Business Days |
| Tenant Response Period | 5-30 Business Days |
| Court Ruling | 2 Business Days |
| Court Serving Execution of Possession | ~1-3 Business Days |
| Final Notice Period | ~1-3 Calendar Days |
Flowchart of South Dakota Eviction Process
South Dakota Eviction Court Fees
The average cost of an eviction in South Dakota for all filing, court, and service fees is $220. Eviction cases can be filed in Circuit Court or Magistrate Court and the filing fees are the same in both courts.
| Fee | Circuit/Magistrate |
| Initial Court Filing | $70 |
| Summons Service | $50+ |
| Execution for Possession Issuance | $5 |
| Execution for Possession Service & Enforcement | $95 |
Sources
- 1 S.D. Cod. L. §21-16-1(4) - (7)
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(4) If a lessee in person or by subtenants holds over after the termination of his lease or expiration of his term, or fails to pay his rent for three days after the same shall be due;
(5) If a party continues in possession after a sale of the real property or occupied structure under mortgage, execution, order, or any judicial process, after the expiration of the time fixed by law for redemption, and after the execution and delivery of a deed or instrument of ownership;
(6) If a party continues in possession after a judgment in partition, or after a sale under an order or decree of a circuit court;
(7) If a lessee commits waste upon the leased premises, or does or fails to perform any act which, under the terms of the lease operates to terminate the same.
Source Link - 2 S.D. Cod. L. § 21-16-7
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Time for appearance by defendant.
The time for appearance and pleading shall be five days from the time of service on the defendant or thirty days after the publication of service under § 21-16-6.1, whichever occurs sooner. No adjournment or continuance shall be made for more than fourteen days, unless the defendant applying therefor shall give an undertaking to the plaintiff with good and sufficient surety to be approved by the court, conditioned for the payment of the rent that may accrue, together with costs if judgment be rendered against the defendant.
Source Link - 3 SD Codified L §43-8-8 (2020)
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A tenancy or other estate at will, however created, may be terminated by the landlord’s giving notice to the tenant in the manner prescribed by § 43-8-9 to remove from the premises within a period, specified in the notice, of not less than one month.
However, if the tenancy at will is the residence of a tenant who is on active military service or if a person on active military service is an immediate family member of the tenant, the tenant is entitled to two months’ notice in the manner prescribed by § 43-8-9 unless:
(1) The tenant has engaged in sustained conduct that is either disruptive to other residents or neighbors, illegal, destructive, or negligent toward the maintenance of the property, or constitutes a material breach in the implied lease conditions; or
(2) The landlord has sold the property or the property has passed to the landlord’s estate.
For the purposes of this section, an immediate family member is a spouse or minor child.
- 4 SD Codified L § 21-16-1 (2021)
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An action of forcible entry and detainer, or of detainer only, is maintainable:
(1)If a party has by force, intimidation, fraud, or stealth, entered upon the prior actual possession of real property or the occupied structure of another, and detains the same;
(2)If a party, after entering peaceably upon real property or an occupied structure, turns out by force, threats, or menacing conduct, the party in possession;
(3)If a party by force or by menaces and threats of violence unlawfully holds and keeps the possession of any real property, or occupied structure, whether the same was acquired peaceably or otherwise…
(7)If a lessee commits waste upon the leased premises, or does or fails to perform any act which, under the terms of the lease operates to terminate the same.
- 5 SD Codified L § 43-32-15 (2020)
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A hiring of real property for a term not specified by the parties is deemed to be renewed as stated in § 43-32-14 at the end of the term implied by law unless one of the parties gives notice to the other of his intention to terminate the same at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month.
- 6 SD Codified L §43-32-36 (2020)
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If a person is found to have knowingly made a false claim of having a disability that requires the use of a service animal or assistance animal or of knowingly providing fraudulent supporting documentation in connection with such a claim, a lessor may evict a lessee and the lessor is entitled to a damage fee, not to exceed one thousand dollars…
- 7 SD Codified L § 43-32-6 (2021)
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A lessor shall deliver the leased premises to the lessee and secure his quiet enjoyment thereof against all lawful claimants.
If the lessor of residential property unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water, or other essential service to the tenant, the tenant may sue for injunctive relief, recover possession by suit, or terminate the rental agreement and, in any case, recover from the lessor damages in an amount equal to two months rent and the return of any advance rent and deposit paid to the lessor by the lessee.
- 8 SD Codified L § 43-32-27 (2021)
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A cause of action may arise in favor of a lessee and against a lessor of residential property, including a manufactured or mobile home community owner, for retaliation by the lessor against the lessee if the lessor increases rents above fair market value; if the lessor decreases electric, gas, water, or sewer services; or if the lessor gives the lessee notice to vacate the premises when such notice is not based upon a breach of the terms of the lease; subsequent to any of the following special events:
(1)The lessor has received written notice from the lessee or a governmental agency that the lessee has complained to a governmental agency charged with responsibility for enforcement of a building or housing code violation applicable to the premises and materially affecting health and safety, and the complaint is determined to be reported in good faith; or
(2)The lessee has given written notice to the lessor of a condition requiring repair pursuant to §43-32-9; or
(3)The lessee has organized or become a member of a tenant’s union or organization.
It shall be a defense to this cause of action that the notice to vacate the premises was given by the lessor more than one hundred eighty days after the occurrence of a special event. The failure of the lessor to renew any written lease prior to or upon its expiration, is not retaliation.
- 9 SD Codified L §21-16-6 (2020)
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…A sheriff, any person legally authorized to effect service under § 15-6-4(c), or constable…shall attempt…a minimum of two service attempts…at least one week apart and both attempts shall be within thirty days. On the second service attempt, the summons may be posted in a conspicuous place…and delivered to a person there residing…and also sent by first class mail addressed to the tenant…
- 10 SD Codified L §21-16-6.1 (2020)
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On the same day as the first attempted service…the plaintiff…may cause the summons to be published in a legal newspaper printed in the county where the subject property is located or in an adjacent county…
- 11 SD Codified L §21-16-7 (2020)
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No adjournment or continuance shall be made for more than fourteen days, unless the defendant applying therefor shall give an undertaking to the plaintiff with good and sufficient surety to be approved by the court, conditioned for the payment of the rent that may accrue, together with costs if judgment be rendered against the defendant.
- 12 SD Codified L §21-16-8 (2020)
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An action under this chapter may be brought on for trial upon two days’ notice after issue is joined. If a jury trial be demanded and no jury is in attendance on the day the action is noticed for trial, the court shall cause a special venire to issue as in cases where extra jurors are required, and proceed to impanel a jury and try the action as in other civil cases.
- 13 SD Codified L §21-16-12 (2020)
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No execution for possession can be served except in the daytime.
- 14 S.D. Cod. L. § 43-8-9
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Manner of delivery–Posting on premises.
The notice prescribed must be in writing, and must be served by delivering the same to the tenant, or to some person of discretion residing on the premises; or if neither can, with reasonable diligence, be found, the notice may be served by affixing it on a conspicuous part of the premises, where it may be conveniently read.
Source Link
