A Lease is a Form of Contract
A South Dakota Residential Rental Lease Agreement protects both parties. South Dakota renters may be bound by either oral or written rental agreements, but having a South Dakota residential lease agreement in writing is always recommended. If your lease is to be for more than one year, it must be in writing or it will treated as a month-to-month agreement. Leases are binding agreements that contain the essential terms of your contract including rent, security deposits, notices and disclosures and which party is responsible for certain tasks. Either party can be sued for damages if a party breaches a material term or provision.
Your lease may not contain terms that are in conflict with state laws or local ordinances. You cannot refuse to rent to anyone based on the person’s race, religion, color, creed, gender, sexual orientation, age, family status or disability.
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Your duties and responsibilities as a landlord include the following:
- Provide a fit and habitable residence
- Provide and maintain electrical, plumbing and heating systems in good condition
- Maintain all common areas free of trash and snow
- Do not disturb the tenants’ quiet enjoyment of the leased premises
All tenants have basic responsibilities as well:
- Maintain the premises in a clean and sanitary fashion
- Use all appliances and systems in the proper way
- To dispose of trash and rubbish
- Comply with safety and health codes
- To not damage or alter the premises
- To return the premises in substantially the same condition
- To not engage in illegal activities
- Pay the rent on time
- Notify the landlord of any necessary repairs
South Dakota Lease Provisions and Terms
Your lease must contain certain terms and should include clear language regarding rules of conduct, fair treatment of all tenants and what is expected of both parties. Most landlord/tenant disputes arise because certain terms were not clear or were omitted or the parties disagreed over the return or retention of the security deposit.
The following terms should be in your South Dakota residential lease agreement:
- Name of property owner and property manager; address where rent is to be paid; emergency or maintenance contact information; address and name of person to whom legal documents and notices are to be served
- Names of all the tenants and any other occupants—have all adult tenants sign the lease so that they are jointly and severally liable for the lease terms, including the rent
- Address of the premises
- Beginning and end dates
- Amount of rent and date it is due—state grace period and amount of late fees
- Insufficient check fees—$40; give a time within which to pay or collect amount due plus any court costs, service and collection costs and processing fees
- Provide rules that apply to all tenants fairly, are clearly worded and that promote the convenience, safety and welfare of the tenants; preserve your property and are not intended to avoid your own duties and obligations—any rule that is a material change in the rental lease agreement in a month-to-month lease must be in writing and not apply until 30-days after notice is given
- Security deposit:
- One month’s rent unless special circumstances pose a danger to the maintenance of the dwelling
- no requirement that funds be kept in a separate account
- if paid in cash, should give tenant a receipt
- no interest required to be paid
- you should provide a check-in list and statement of the condition of the property to be signed by both parties
- state that that the funds are to be used for damages that exceed normal wear and tear, unpaid rent or utilities for which the tenant was responsible
- that funds will be returned no later than 2-weeks of tenant vacating unit and sent to a forwarding address that is supplied by the tenant or advise tenant that funds will be deducted for damages—must send itemized statement of damages and cost of repairs within 45-days of the tenant’s request
- recommend that you set a time and date for a mutual inspection a short time after the tenant vacates with check-out list on hand
- Landlord’s obligations as noted above—may provide house or conduct rules that apply to all tenants and are for the convenience, safety and welfare of all tenants, provides for the fair distribution of services and facilities to all and preserves the landlord’s property from damage
- Tenant’s obligations as noted above—you may require the tenant to perform specific minor repairs or maintenance if it does not diminish the obligations of the landlord to provide a residence fit for habitability and the agreement is in a separate writing and tenant receives separate consideration—applies only to one, two or three family rental units
- Party responsible for certain utilities
- Major appliances being provided
- No commercial, business or illegal use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit except for service dogs
- Subletting clause—whether you allow it and that you have to consent to whomever is the sublessee
- Your right of entry to make repairs, inspect and show to future tenants or purchasers—24 hours’ notice and entry at reasonable hours; indicate that you may enter immediately if it is an emergency
- Notify landlord if absence from unit is to be 7 days or longer
- If lease is monthly, termination upon 30-days’ notice without cause; tenant may terminate at end of following rental period after giving 15-days’ notice of any modification in the lease
- 3 -day notice to quit required for nonpayment of rent; you may give only 24-hours’ notice for other violations of the lease if so specified such as:
- substantial damage or waste to the premises caused by tenant or persons under tenant’s control that has not been repaired
- unauthorized pets or occupants
- engaged in gang activities
- engaged in criminal activity that endangers the safety of other tenants including the manufacture of illegal controlled substances
- Sublease without consent
- Constant nuisance to other tenants
- Refusing entry to landlord after being given reasonable notice
- Notice for increasing rent—30-days in advance of the effective date of the increase in a monthly lease (may not be for a discriminatory or retaliatory purpose); otherwise, not until the fixed term expires
- Provide disclosure of the presence of lead-based paint on the property for all rental property built before 1978—provide the tenant with an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
- Notice of prior manufacture of methamphetamines on the premises
If you include certain terms that conflict with state laws, you may face damages. These include terms such as:
- Allowing entry without notice
- Waiving your liability to tenants for any damages you cause
- Requiring the tenant to admit responsibility for any damages
- Allowing eviction without notice
- Allowing you to take the tenant’s possessions for nonpayment of rent
- Delegating all repairs to the tenant
- Requiring you to give up certain rights and remedies
- Altering terms regarding the security deposit that conflict with state law
Security Deposits Capped Unless Special Circumstances
You may not charge more than one month’s rent as a security deposit unless you can show that there are special circumstances that pose a danger to the dwelling’s maintenance such as a pet. You need not deposit the funds in an interest bearing account.
Although not required, you should conduct a mutual inspection of the premises with your tenants and agree on the condition of the premises and appliances or furnishings. Use a checklist that you both can sign and use again when the tenancy is terminated.
State the deposit is to be used for damages that exceed normal wear and tear and for payment of rent arrearages or unpaid utilities.
You must return the full deposit within 2-weeks of the tenant’s vacancy or advise that sums will be deducted for damages. You do not have to submit an itemized statement of the damages and repair costs unless the tenant requests one. If so, you have 45-days to submit it.
Your failure to comply with these rules can subject you to a $200 penalty as well as having to return the full deposit.
Notices for Termination of the Lease
Fixed term rental lease agreements will expire as of the last day as indicated, or after you give 30-days’ notice. This applies to monthly leases as well. If you give the tenant notice of a modification in a monthly lease such as an increase in rent, the tenant may terminate the lease by giving you a 15-day notice and vacating by the first day of the following month.
For nonpayment of rent, you have to give a 3-day notice to quit before eviction proceedings may begin. If the tenant pays in full within the 3-days, you may not evict.
For all other material violations that would cause waste or substantial damage to the unit, you may serve a 24-hour notice. You do have to specify which violations qualify as a material breach allowing you to give such short notice, such as engaging in criminal activities, annoying other tenants, allowing unauthorized pets or occupants or subletting the unit without your consent.
Under the federal Servicemembers Relief Act, a tenant who is a member of the American Armed Forces including any of the uniformed services may terminate a fixed term lease if the tenant receives deployment orders to move more than 35 miles from the premises for more than 90 days or must live in a barracks or other residence supplied by the government. The tenant must provide a copy of the orders or at least a written statement from the commanding officer. The tenant must give 30-days’ and has no further obligations under the lease so long as the rent owed for the final rental term is paid.
If the tenancy is at-will (monthly) and the tenant is an active service member or a person on active service is an immediate family member of the tenant, you can only give 2-months’ notice to terminate the lease unless the tenant has engage in conduct that is disruptive to other tenants or has damaged the premises or breached some other material term of the lease.
Repair or Withhold and Deduct for “Habitability”
If certain conditions exist or repairs need to be made affecting the habitability of the unit, the tenant needs to notify you in writing. You do have an obligation to make the repairs within a reasonable time if you did not delegate these to the tenant so long as they are not major and do not affect the habitability of the premises, which is your responsibility. If the repair costs exceed one month’s rent, the funds must be deposited in a bank account with proof of the deposit. Any disputes will have to be resolved by the court if you cannot agree.
No Retaliatory Conduct or Constructive Eviction
You may not retaliate against a tenant or take action to forcibly evict a tenant without a court order. Retaliation is increasing a tenant’s rent above fair market value or terminating the lease because the tenant complained to a governmental agency about the unit, joined a tenant’s union or pursued a remedy against you within the past 180 days of your action. This does not apply to your not wanting to renew a rental lease agreement that has expired or if the tenant has violated a major term of the lease.
A South Dakota residential rental lease agreement is essential for any landlord regardless of the term of the lease as it sets forth your respective expectations, duties and obligations. Always consult with an experienced South Dakota landlord/tenant attorney if you have any questions about your rental lease agreement.