If you own and rent properties in the state of South Dakota, you are responsible for complying with South Dakota law on eviction. In this article, we break down each step of the legal eviction process in South Dakota.
South Dakota’s eviction laws can be found at SDC § 21-16.
Eviction Process in South Dakota
Landlord serves a zero- to three-day eviction notice.
Landlord files an eviction lawsuit with the court.
Court serves tenant a summons.
Tenant files an answer.
Landlord and tenant attend court hearing and receive judgment.
Tenant moves gets a final notice period to move out.
Sheriff returns to forcibly remove the tenant.
According to South Dakota law, tenants can be evicted for failing to pay rent, violating the lease, holding over after the lease has expired, committing waste on the premises, or otherwise unlawfully holding and keeping possession of any real property (SDC § 21-16-1).
1. Landlord Serves a Zero- to Three-Day Eviction Notice
If any of the above lease violations occur, the landlord must first serve a South Dakota eviction notice and state that the tenant has the appropriate number of days to remedy or cure the violation. In South Dakota, there are several different types of three-day quit notices and one type of lease violation notice.
3-Day Notice to Quit and Vacate. A copy of this three day notice can be found here. This notice applies in three different situations:
Nonpayment: If rent is unpaid when due, the landlord may deliver this notice stating that the lease will terminate after three days’ time. The landlord is not required to give the tenant an opportunity to pay their rent to avoid eviction (SDC § 21-16-2).
Holdover: If the tenant unlawfully holds over and keeps possession of the property after the lease has terminated, the landlord should give three days’ notice to quit (SDC § 21-16-2).
Sale of Property: If a tenant continues in possession after the property has been sold and the legal timeframe allotted to the tenant to move out has expired, the landlord may serve them a three-day notice to quit.
Lease Violation Notice: Immediate. If a tenant violates a lease provision, commits waste upon the leased premises, or falsely claims to require a service animal/creates fraudulent disability or service animal documentation, the landlord may immediately terminate the rental agreement and file for eviction (SDC § 21-16-2,43-32-36).
For all evictions, the landlord may recover actual damages and reasonable attorney’s fees.
2. Landlord Files an Eviction Lawsuit with the Court
The next step in the South Dakota eviction process is filing a complaint in court. If the tenant has not cured the breach by the end of the notice period (or if the violation is uncurable and the notice period expires), the landlord can then file a Verified Complaint for forcible entry and detainer (the eviction lawsuit) in any South Dakota Circuit or Magistrate Court in the county where the property is located (SDC § 21-16-3).
To initiate the action, the landlord needs to complete and submit three different forms:
Case Filing Statement (downloadable here). This form lists the names and basic information for all the parties in the case.
Summons (downloadable here). This form will inform the tenant about the action and demand their presence in court.
Verified Complaint (downloadable here). This form establishes more details of the eviction case. It must be signed in front of a Notary Public or the Clerk of Court. The landlord should also attach copies of the Notice to Quit or Vacate they sent to the tenant as well as the Sheriff’s Affidavit of Service(downloadable here) for that notice.
The landlord should make at least two copies of the Summons and Verified Complaint, one for their own records and another to be served to the tenant. The originals will be filed with the Case Filing Statement in the Clerk of Court’s Office. The landlord will also need to pay a filing fee of $70 to file the eviction lawsuit at this time (SDC § 21-16-6).
3. Court Serves Tenant a Summons
As mentioned above, the tenant must be served a copy of both the Summons and the Verified Complaint. This is done by the sheriff. The landlord must take both forms to the sheriff’s office, request service, and pay a service fee of $50 (plus mileage and $10 per additional tenant).
Then, the sheriff or constable of the county will attempt personal delivery of the documents to the tenant at least twice. Each attempt must be at least one week apart, and both attempts should be within 30 days. On the second attempt, the sheriff will also leave the summons posted in a conspicuous place on the property and mail it by first class mail (SDC § 21-16-6). In some cases, they may also “serve” the summons by publishing a copy in a legal newspaper printed in the county (SDC § 21-16-6.1).
4. Tenant Files an Answer
According to South Dakota eviction laws, the tenant has four days to file a written Answer (for Eviction) (downloadable here) after receiving the summons. An answer is an objection to the eviction stating any defenses, counterclaims, or other reasons the tenant believes they should not be evicted. The tenant then serves the answer to the landlord (if mailed, an additional three days are allowed for delivery).
If the tenant doesn’t file and serve an answer within four days, a default judgment will be granted to the landlord. The landlord will need to complete the Motion for Default Judgmentand Affidavit in Support of Motion for Default Judgmentforms (downloadable here and here, respectively), along with several other forms. The court may or may not require a hearing on the motion. The landlord should follow the instructions of the court and notify the tenant as required.
Keep in mind that the maximum adjournment or continuance that the court will grant for the hearing is fourteen days, unless the tenant gives an undertaking to the landlord with sufficient surety conditioned for the payment of the accrued rent and court costs (SDC § 21-16-7).
5. Landlord and Tenant Attend Court Hearing and Receive Judgment
As soon as the landlord receives the answer, they should contact the Clerk of Court’s office to schedule a date for the hearing. The hearing could be scheduled as soon as two days after the tenant files the Answer. The landlord must complete the Notice of Hearing form (downloadable here) and mail it to the tenant before the trial date (an Affidavit of Mailing, downloadable here, is also required). Either party may request a jury trial, and if no jury is in attendance that day, the court will summon one (SDC § 21-16-8).
On the day of the eviction hearing, the landlord should bring copies of the lease agreement, the eviction notice with proof of service, the complaint, and any evidence of the lease violation. The landlord also needs to have copies of the Judgment of Eviction and Damages form(downloadable here)available for the court. Both the landlord and tenant will present their cases and any evidence to the judge, who will afterwards issue a judgment. If the judge rules in the landlord’s favor, they will issue and sign a judgment for the delivery of possession to the landlord and for any rents, profits, or damages claimed in the complaint (SDC § 21-16-10).
The court will also issue an Execution for Possession, which authorizes the tenant’s removal from the rental unit. A $5 issuance fee may be applied. South Dakota law doesn’t specify how quickly the execution must be issued, but this usually occurs within a few hours to a few days.
6. Tenant Gets a Final Notice Period to Move Out.
After the Execution for Possession has been issued, a copy will be served to the tenant by the sheriff’s office. The execution will state a date by which the tenant must be fully moved out of the rental property. South Dakota eviction law does not specify how many days the notice must provide the tenant to move out, but it does state that the execution itself cannot be served at night—it must be served in the daytime (SDC § 21-16-12).
7. Sheriff Returns to Forcibly Remove the Tenant.
If the tenant has not moved out by the date ordered, the landlord can take the Judgment of Eviction and Damagesto the sheriff’s office and request execution of the judgment. The sheriff will return to the rental unit, forcibly remove the tenant, and return possession of the premises to the landlord. The fee to have the sheriff serve and execute the execution is $95.
Evicting a Squatter in South Dakota
A squatter is a person who moves into a vacant or abandoned property without getting permission from the owner or paying rent. Squatters can usually be charged as criminal trespassers and be evicted like any other tenant. However, some squatters can receive the right to possession by meeting certain state-determined criteria. According to South Dakota law, squatters must have lived in the property for 20 continuous years (or 10 continuous years if the squatter also has color of title and has paid property taxes for at least as long) to invoke South Dakota squatters rights and claim right of possession (SDC § 15-3-1, 15-3-16). Here are the other requirements for adverse possession South Dakota and all other states prescribe:
Hostile/Adverse—The squatter must not have a valid lease with the owner
Actual—The squatter must be actively residing on the property
Open and Notorious—The squatter is openly and obviously living there.
Exclusive—The squatter does not share possession of the property with anyone else.
Continuous—The squatter must hold continuous and uninterrupted possession.
While relatively rare, if a squatter meets all these criteria, they have “color of title”: the right of legal ownership without having a written deed to the property. They can file an action for adverse possession in South Dakota to legally obtain the title to the property. However, in most cases, a squatter will not meet the criteria and can be removed. If you think a squatter is living in your vacant property in South Dakota, you should:
Call local law enforcement.
Determine whether the person is a trespasser or a squatter.
If the person is a trespasser, they can be removed immediately by a police officer.
If the person is a squatter, you must contact the sheriff’s office.
Send the squatter an eviction notice as per South Dakota eviction law.
If the squatter does not vacate the premises by the end of the notice period, file an eviction lawsuit and follow the typical eviction process in South Dakota.
Only the sheriff can physically remove a squatter from your property. You cannot do so, and neither can a police officer.
South Dakota Eviction Cost Estimates
This chart shows estimates of the approximate cost of an eviction in South Dakota, according to civil procedure in the state and iPropertyManagement. A highly accurate estimate of an eviction is impossible to provide, as cases and circumstances vary so widely. Remember to factor in other losses due to an eviction as well, such as lost rent, time, and stress.
Action
Approximate Cost (Circuit/Magistrate)
Filing fee
$70
Service of court summons by sheriff
$50, plus mileage, plus $10 per additional tenant
Issuance of execution for possession
$5
Service and enforcement of execution for possession
$95 (plus a $10 deposit in some counties)
Legal fees
$500-$10,000
Average locksmith fees
$160
Storage fees for abandoned property
Varies
Tenant turnover costs
Varies
South Dakota Eviction Time Estimates
The chart below shows an estimate of the duration of each part of the South Dakota eviction process timeline. Keep in mind that the length of eviction cases varies widely depending on the complexity of the eviction, the court’s current caseload, and whether or not the tenant contests or appeals the lawsuit.
Instructions for Eviction Actions – This pdf includes a list of the various forms required for landlords during an eviction as well as some general instructions for eviction actions.
Schedule of Court Costs – This document lists the civil filing fees and court costs in South Dakota courts.
Conclusion
The eviction process in any state can be long and complex, so hiring an eviction attorney is advised in most cases. It’s also important to note that municipalities and local governments often have stricter laws and requirements for landlords, so be sure to check local statutes as well as state ones. However, by reviewing the legal procedures and South Dakota laws on eviction, you can feel more confident pursuing an eviction in this state.
Innago does not provide legal advice. The content and materials provided in this article are for general informational purposes only and may not be the most up-to-date information.
