These vary from county to county, but they still follow the same general eviction process:
- Send an eviction notice
- Fill out the forms
- Serve the tenant
- Attend the trial
- Wait for judgment
Every eviction process is different and dependent on the lease/rental agreement signed by the tenant and the landlord. It is always best to exercise meticulous file-keeping to avoid errors that could be exploited by the tenant.
A landlord is advised to have a written lease because it clarifies a lot of possible violations. A written lease also dictates actions that may be taken by the landlord should the tenant violate any agreements.
Sometimes, a South Dakota eviction can be referred to as a Forcible Entry and Detainer action.
This article details a summary for landlords to refer to when evicting a tenant. Confirm procedures with your justice court to make sure the entire process goes as smooth as possible.
A landlord may also ask for legal advice from an attorney.
The first step to every Forcible Entry and Detainer action is to provide a 3-Day Notice, 7-Day Notice, or 30-Day Notice to a tenant.
The most common notice period to give a tenant is 3 days before proceeding with an eviction action, but it can go as high as 1 month. This of course depends on the reason for eviction, and a landlord has to be aware of the appropriate Notice to Quit they have to give their tenant.
A tenant may use a wrong Notice to Quit as grounds for the termination of a Forcible Entry and Detainer action. The Notice must be the correct one and the Notice must also be given to the tenant the right way.
Perhaps the most common reason for a landlord to evict a tenant is not paying rent due.
1. Nonpayment of Rent
According to North Dakota law, a tenant has failed to pay rent on time if they have not paid rent a day past rent is due. For example, if rent is due on the 25th and they haven't paid rent on the 26th, then a landlord can evict the tenant for nonpayment of rent.
A grace period may be available if stated in the lease/rental agreement. This allows the tenant to catch up on rent and allows them to pay any rent that is still due.
However, a landlord is under no obligation to let the tenant pay rent they may owe (unless there is a grace period for late payment of rent in the lease/rental agreement).
Instead, the landlord may give a second chance at paying rent if they wish to do so. Before they can start the eviction process, a landlord must give the tenant an official written 3-Day Notice to Quit.
If the tenant fails to vacate the rental unit after the three-day notice, the landlord may continue filing for a Forcible Entry and Detainer action.
Oftentimes, if the tenant manages to pay any past due rent before being evicted, it will lead to the termination of the entire case.
2. Violation of the lease/rental agreement
A tenant can be evicted for violating the terms of the lease.
The lease/rental agreement has to be upheld by both tenant and landlord for the entire duration of their stay. Lease/rental agreements may vary from tenant to tenant.
If a tenant violates any terms of the lease agreement, the landlord must issue a Notice to Quit. Landlords are not legally obligated to allow the tenant to do any repairs before presenting them with the notice.
Lease violations may include:
- Damage to the rental unit
- Smoking in non-smoking areas
- Keeping pets in pet-free properties, etc.
- Conducting illegal activity within the rental premises
South Dakota law does not state how long of a notice period a landlord has to give their tenant for violating the lease. Landlords are advised to give tenants an appropriate notice period.
If the tenant remains on the property by the end of the given notice period, then the landlord may continue with the filing for a Forcible Entry and Detainer Action.
3. False claims of needing a service animal inside the rental unit
A landlord reserves the right to evict tenants who have been dishonest with a disability that supposedly requires a service animal. Tenants charged with false claims of needing a service animal cannot correct them.
They have to be given a written Notice to Quit and vacate the property before being evicted.
South Dakota law does not specify how much notice a tenant must receive before the eviction process can begin. Landlords are advised to give tenants an appropriate notice period.
4. Sale of Rental Property
Sometimes, a buyer takes interest in the rental property but does not wish for it to be rented out.
In this case, the landlord must give the tenant a 3-Day Notice to Quit. Should the tenant remain in the rental unit after three days, then the landlord can continue to file for eviction.
5. Non-renewal of the lease after the rental period ends
In South Dakota, landlords cannot evict a tenant or force them to vacate the property without probable cause. As long as the tenant does not violate any rules, they can stay until their rental period ends.
But if they stay in the property even a day after their lease/rental agreement ends and have not arranged for renewal, landlords can issue a written notice to move.
A landlord must issue a Notice to Quit. The amount of notice time they receive depends on the length of their tenancy OR thirty days, whichever is a shorter length of time.
Should the tenant remain within the premises after the notice period, the landlord may continue to file for eviction.
Filing a Complaint
1. How to File a Complaint
The second step is filing a Complaint. The eviction process can only begin after the issuance of the appropriate eviction notice. Enough notice time must have been allowed before filing for eviction.
The eviction process is as follows:
- Proceed to the justice court the rental unit belongs to
- File a complaint
- Pay the fees
It takes about three days to thirty days from the issuance of the Notice to Vacate/Quit.
Serving the Tenant
1. How to Serve a Tenant
The third step in a Forcible Entry and Detainer action is to serve the documents to the tenant.
The Summons for the eviction hearing and the Complaint must be given to the tenant within 30 days of the date it was issued by anyone authorized by South Dakota law
The authorized server—usually a sheriff, constable, or anyone uninvolved in the case—has to deliver the Summons and Complaint at least two times, each service attempt has to be 1 week apart.
For the first attempt of delivery, there are two methods available:
- Personal Service: The authorized server delivers the Summons and Complaint to the tenant in person
- Publishing: The authorized server publishes a copy of the Summons and Complaint to the local newspaper
- For the second service attempt, there are another two methods available:
- Substituted Service: If the tenant is unavailable, a copy of the documents may be given to someone living with the tenant inside the rental unit
- Posting and Mailing: The authorized server leaves a copy of the documents for the tenant. It is placed in a secure and visible position by the entrance of the tenant’s rented property. When using this method, the official also has to mail a copy to the tenant
2. After Serving the Summons and Complaint
A tenant must file a written answer in court should they wish to dispute the claims of a South Dakota eviction hearing. They have to file an answer within 4 days from the date they received the Summons.
But if the Summons was published in the local paper, then they have 1 month from the date it was published to file an answer.
Should the tenant be unable to file an answer before their deadline, they can file for a postponement—called a continuance—that lasts no longer than 14 days.
If the tenant fails to file an answer, then the judicial officer may decide to award judgment in favor of the landlord without the need for an eviction hearing.
The documents must be given to the tenant within 1 month of its issuance from the court. There must be at least two attempts within the eviction process to deliver the documents to the tenant with each attempt being 1 week apart.
The tenant has 4 days to file for an answer, or 1 month if the Summons was published in the local paper.
A tenant may request for a continuance that lasts no longer than 14 days if they are unable to file an answer on time.
Asking for Possession
1. Filing a Motion to Obtain Judgement and get a Judgement for Possession
In this step, the landlord has to provide a strong argument backed up by solid evidence against the tenant. Should the tenant fail to show up to the hearing, the landlord wins by default.
Eviction hearings are scheduled as early as 2 days after the tenant files their written answer in court.
1. After the landlord wins the case
South Dakota state law does not specify how long it takes for an Execution for Possession to be issued. Landlords are advised that this may take a few hours to a few days after they win the case.
An Execution for Possession is a court order that tells the tenant they have to move out of the premises or else they will be forcibly evicted by authorized officials. It is usually the final step a landlord takes before they receive their rental unit back.
2. Next procedure if the tenant disagreed and replied
In the state of South Dakota, a reply from the tenant is necessary for a court date to be scheduled. The earliest a court can schedule a court date for the eviction hearing is 2 days after the tenant files their written answer to the court.
During the eviction hearing, the landlord needs to support the claim with evidence and show it during the hearing. This could include, but is not limited to the following:
- Copy of the deed and lease
- Rent receipts
- Rent ledgers
- Bank statements
- Photo and video documentation of the violations, correspondence, etc.
3. Move out process
Once judgment is passed in favor of the landlord and the Execution for Possession is enforced by officials from law enforcement, the tenant has to move out immediately since there is no clear timeframe provided by South Dakota state law.
The only specification made is that the officials can only forcibly remove a tenant from the rental unit during the daytime.
Only the sheriff or the appropriate authorities are allowed to evict the tenant by force. Even if the landlord wins the case, they are not allowed to engage in illegal methods of eviction, or else the eviction process may be overturned.
The state of South Dakota does not specify what to do with a tenant’s belongings. If any belongings are left behind, landlords are advised to contact the tenant and give them a reasonable time period to claim them. After the time period has passed, the tenant’s property can be sold or disposed of.
Tenants must vacate the property as soon as judgment is passed in favor of the landlord because South Dakota does not specify a time period for officials to follow.
South Dakota Eviction Process Timeline
Below is the average timeline for a complete eviction process. This timeline does not include special cases such as requests for an appeal or continuance.
On average, it would take anywhere between 5 weeks to 3 months for a complete eviction process. This does not include the extra time it will take when either party files for a continuance or a jury trial.
1. How to keep good records
If the tenant disagrees with the eviction request and they reply to the court, it’s important that you keep extremely good records of everything so you can provide proof to the judge and win your case. This part can make or break your entire eviction request in the event of a dispute.
You can stay organized by:
- Keeping a physical paper trail - This gets VERY hard to search through, takes up a lot of storage space, and could get lost, damaged, stolen, or burnt in a fire, so it is important to keep them in a safe place.
- Scanning documents - Scan every document into your computer. A great scanner is the Brother ADS-1700W for under $200 or the Fujitsu ScanSnap iX1500 for $400.
- Backups - Store and backup every file using Dropbox, Google Drive, OneDrive, or any other option that is easily searchable.
- PMS - Use a property management software to save everything from lease agreements, signed documents, violations, emails, notes, invoices, payments, reminders, maintenance requests, pictures, videos, and anything you can imagine. This is used best when you also scan every document into your software.
2. Evidence to show for not paying rent
If the tenant doesn’t pay rent, and they dispute that claim, it’s important that you show the judge the following:
- Your lease agreement - Showing the terms of the agreement, when rent is due, and any penalties for late payment can be useful in your court case.
- All payments - Showing all previous payments, how they were normally made (check, credit card, ACH, etc…), and what date they were normally paid on.
- Any payment returns - If their check bounced, their bank account had insufficient funds, or they did a chargeback dispute on their credit card, show this to the Judge. Also, show any fees your bank may have charged you, and any penalties you are owed according to your lease agreement.
- All messages - If you sent your tenant automated or manual payment reminders by text, email, letter, or mail, it’s important to show this. While it may not be needed, it can be useful to show that the tenant was aware of the whole situation. This is why it’s always best to have everything in writing instead of any phone calls or face-to-face meetings.
3. Evidence to show for lease violations
If you are evicting the tenant for lease violations, for example, noise complaints, unauthorized pets, or property damages, it’s important to show proof from any of the following methods:
- Security Cameras - If you have a surveillance system that can show them committing the crime or lease violation, it’s safe to say you will normally win this dispute.
- Video - If you didn’t catch them in the act, the next best thing is to record a video with your phone of any damages or the lease violation.
- Pictures - They say a picture is worth a thousand words. In this case, a picture could be worth thousands of dollars! Even if you take a video, it’s important to show the Judge any pictures too as it’s usually easier to see by email or printed.
- Lease Terms - Once again, show the court the entire least agreement to show any violations from the tenant, Don’t worry if you don’t have every single term spelled out in your rental agreement. If the violation is bad enough, it might not be needed to have it written. As a good practice though, start adding all of the potential reasons to evict a tenant into your agreement.
1. What is a self-help eviction?
Examples of illegal “self-help” evictions include changing the locks, taking the tenant’s belongings, removing the front door, or turning off the heat or electricity. Many states specify how much money a tenant can sue for if the landlord has tried to illegally evict the tenant through some sort of self-help measure. Some state laws also provide for tenant's court costs and attorneys' fees (if the tenant successfully sues the landlord) and/or give the tenant the right to stay in the rental unit.
2. Can I force a tenant to move out in South Dakota?
In almost every state in the US, a landlord must never try to force a tenant to move out of the rental unit. The tenant can only be removed from a rental unit after the landlord has successfully won an eviction lawsuit. Even then, the only person authorized to remove the tenant is a sheriff or constable. Similar to many other states, South Dakota law has made it illegal for a landlord to personally remove the tenant from the rental unit.
3. What are the potential penalties for a self-help eviction?
According to South Dakota Civil Code, you may be liable for Tenant’s Court Costs & Attorneys’ Fees. The statute also gives the tenant the right to stay on the property for the time being.
A tenant can sue you for actual damages plus violations. Tenants may ask for an injunction prohibiting any further violation during the court action.
Can you kick someone out without an eviction notice in South Dakota?
No. A landlord could be sued for forceful eviction of a tenant if they skip the proper eviction processes.
In the state of South Dakota, tenants can sue their landlord for the following amounts:
- Two months’ rent
- Return of security deposit if tenant choose to terminate the lease
As another consequence of forceful eviction, the Landlord-Tenant statutes cover for the tenant’s court costs and legal fees.
Which eviction methods are considered illegal?
Self-help eviction is illegal. Examples of such acts include (but are not limited to):
- Cutting off the tenant’s electric, water, and/or heat supply
- Changing the locks to prevent the tenant from entering the property
- Vandalizing or destroying the tenant’s property
It is also illegal to commit retaliatory evictions. An example of such an act involves evicting a tenant because they reported the landlord for improper repairs done to the rental unit.
What rights does an evicted tenant have?
Before a tenant is evicted, they already have a lot of rights under the Landlord-Tenant Act, and one of these is to have necessary repairs done promptly to the rental unit by the landlord.
An evicted tenant in South Dakota has the right to stay on the property until the Execution for Possession is issued by the court and served by the appropriate officials during the daytime.
They are not to be forcibly removed by the landlord through self-help eviction. More information can be found in this Overview of Landlord-Tenant Laws in South Dakota.
Does an eviction go away after 7 years?
Yes. Tenant rights state that an eviction remains in the records of a tenant’s rental history for 7 years before they can get a clean slate. Landlords are advised to refer to their rental history before leasing a property to a tenant.
What other laws should I be aware of?
Landlords should be aware of the changes made to the Eviction Policies in the state of South Dakota. Especially in the light of the COVID-19 pandemic. There may be eviction bans.
It is also wise for landlords to check out laws on Security Deposits. The deposit protects the rights of the landlord in case the tenants violate any terms in the lease/rental agreement or fail to pay rent.
There are some penalties that go as high as two hundred dollars should a landlord fail to return the deposit due to punitive damages.
On top of reading the eviction policies for the COVID-19 pandemic and the laws on security deposits, landlords are also encouraged to read up on Landlord Tenant Laws in South Dakota. These statues contain necessary information on landlord and tenant rights.
- eForms: South Dakota Eviction Notice Forms
- National Apartment Association: COVID-19 Information for South Dakota
- NOLO: Chart: Security Deposit Limits, State-by-State
- NOLO: Consequences of Illegal Evictions
- NOLO: How Evictions Work: Rules for Landlords and Property Managers
- NOLO: Overview of Landlord-Tenant Laws in South Dakota