The South Dakota eviction process allows for a more expedited proceeding than generally seen in other states. Still, a landlord must adhere to state law when trying to evict a tenant.
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Self-Eviction Not Allowed
The landlord should not attempt to self-evict the tenant by shutting off essential services. Essential services include heat, water and electricity. The landlord should not enter the unit and remove the personal belongings of the tenant in an attempt to evict the tenant. If the landlord employs these illegal tactics, the landlord may be liable for damages and out-of-pocket expenses incurred by the tenant who also may terminate the lease agreement.
3-Day Notice to Quit
No eviction from a rental property can be done without a court order and only after the landlord has performed all the necessary steps. For any eviction reason from nonpayment of rent to a material violation of the rental agreement, the landlord must first serve a written South Dakota Eviction Notice, also called a 3-Day Notice to Quit. The notice for failure to pay rent can be served once the tenant is more than 3-days late.
Other than for nonpayment of rent after 3 days, the tenant may be evicted for substantially damaging the premises, unlawfully remaining after expiration of the rental agreement, or by an act of omission or commission that would constitute a cancellation of the lease. This would usually include committing criminal acts on the property or having unauthorized persons living on the property.
There is no specific requirement as to the contents of the 3-Day Notice but most state courts will look to see if sufficient information has been given to the tenant so that any requirement of due process is met. To meet the sufficiency test, a notice should have the following:
- Name and address of tenant
- Name and address of landlord
- Reason for the eviction
- Opportunity for the tenant to remedy the violation or not, and when
- Date of the lease termination
If a landlord simply needs to end a tenancy, he should serve a Notice to End Tenancy.
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Service of Notice
According to law, the South Dakota eviction process requires that the 3-Day Notice to Quit be served pursuant to the standard laws for service of any other legal document, meaning by a process server and by personal service possible. If the first attempt to hand-serve the tenant is unsuccessful, the server must wait 6 hours and then make a second attempt, at which time he or she may give the notice to any subtenant or occupant in the rental unit or property, if available. The notice must then be taped to the front door and sent by mail. Certified mail is not required.
Summons and Complaint
After the third day since the written notice was delivered or posted and the tenant has not paid the full rent, along with any reasonable late fee, or cured the lease violation in question, the landlord must then file and serve a Summons and Complaint for Forcible Entry and Detainer. Instead of the usual time for a defendant to respond to a Summons and Complaint, the defendant tenant in this case can be made to file and Answer in 4 days instead of the standard 30-days. A tenant can request additional time of up to 5 days to respond but only if the court approves along with the tenant having to secure a a surety bond or by depositing with the court the amount of the rent and court costs.
Also, the case can be brought to trial within 2 days but is more typically scheduled between 4 and 30-days after service of the summons. If the tenant fails to file and serve an Answer, the court will enter a default judgment in favor of the landlord.
South Dakota Eviction Hearing
The tenant can demand a jury trial in forcible entry and detainer actions. Otherwise, a bench or court trial is held. The landlord must present sufficient proof of nonpayment of rent or of a material violation of the rental agreement that would warrant cancellation of the lease.
Defenses the Tenant Can Use
A tenant does have certain defenses including including demonstrating the he or she did not violate the lease. Other defenses include a showing that the eviction was for a discriminatory reason such as the tenant becoming pregnant, disabled, or the landlord not liking that the tenant is from a particular foreign country or practices a certain religion.
The landlord may not start a South Dakota eviction process because the tenant has made complaints about needed repairs or has joined a tenant rights union. If the landlord starts an eviction within 180 days of any of these instances, this may constitute a retaliatory eviction and the landlord may be liable for up to 2-months rent, return of the security deposit and up to $500 for attorney’s fees.
If the landlord prevails at the hearing or the tenant fails to respond, the court will issue an order for possession to the landlord. Rent that is owed may also be obtained by a judgment during this proceeding. An execution for possession can be requested by landlord if the tenant remains in the unit past the time permitted by the court to vacate.
The execution order must be given to the sheriff who has the sole authority to forcibly remove a recalcitrant tenant.
Abandonment of Tenants’ Personal Property
Should the tenant leave behind personal property, the landlord has certain obligations. If the property is valued at less than $500, he or she can dispose of it after 10-days. If the property is worth more than $500, the property must be stored for 30-days before being disposed of by the landlord. The tenant can recover the property only after paying the storage and handling costs within the 30-day period.
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