South Dakota

South Dakota at a Glance

1. Mechanic's Lien Rules

Plain English

As against the owner, a South Dakota mechanic's lien attaches when the first work or materials are furnished, and it beats any mortgage or encumbrance not of record at that time, unless the claimant had actual notice of it. But as against a good-faith purchaser, mortgagee or encumbrancer without notice, the lien does not attach before the actual and visible beginning of the improvement on the ground. The claimant must file a lien statement within 120 days after the last work or materials, or the lien expires, and must first mail a copy to the owner by registered or certified mail. A lien must be enforced within 6 years after the last item in the lien statement, but an owner, agent, or contractor can serve a written demand; the claimant then has 30 days to sue or lose the lien. If a notice of project commencement has been filed (within 30 days after work begins), sub-subcontractors and suppliers to subcontractors must mail a notice of furnishing to the contractor, with a copy to the owner, within 60 days after their last work to keep a lien (individual laborers under $2,000 excepted).

Key Rules

Attachment and priority (SDCL §§ 44-9-7, 44-9-8). First furnishing as against the owner; visible commencement as against a good-faith purchaser or mortgagee without notice.

Filing (SDCL §§ 44-9-15, 44-9-17). 120 days; mail a copy to the owner first.

Enforcement and demand (SDCL §§ 44-9-24, 44-9-26). 6 years; 30-day demand.

Sub notices (SDCL §§ 44-9-50, 44-9-53). Notice of furnishing within 60 days when a notice of project commencement was filed.

Practice Points

1. Find out when work started before insuring a mortgage.
2. Use the 30-day demand to clear liens.
3. Get lien waivers for work within the last 120 days.

Citations

• SDCL ch. 44-9 (mechanics' liens): https://sdlegislature.gov/Statutes/44-9
• SDCL § 44-9-7 (attachment; preference): https://sdlegislature.gov/Statutes/44-9-7
• SDCL § 44-9-8 (good-faith purchaser or mortgagee): https://sdlegislature.gov/Statutes/44-9-8
• SDCL § 44-9-24 (six-year limit): https://sdlegislature.gov/Statutes/44-9-24
• SDCL § 44-9-53 (notice of furnishing): https://sdlegislature.gov/Statutes/44-9-53

2. Execution and Notarization Requirements for Recording

Plain English

South Dakota deeds are acknowledged and recorded with the county register of deeds, with a certificate of value. The transfer fee is $0.50 per $500 of value (or fraction), and the statute puts it on the grantor. An unrecorded conveyance is void against a later good-faith purchaser or mortgagee for value who records first. South Dakota notaries may notarize remotely by video for a signer they know personally on a paper document, or by remote online notarization on an electronic record with two forms of identity proofing and an audio-visual recording.

Key Rules

• Transfer fee (SDCL § 43-4-21). $0.50 per $500; paid by the grantor.
• Exemptions (SDCL § 43-4-22). Include mortgages and releases, corrective deeds, foreclosure deeds, gifts and transfers with no consideration.
• Recording act (SDCL § 43-28-17). Race-notice.
• Remote notarization (SDCL §§ 18-1-11.1, 18-1-11.2).

Practice Points

1. Round up to the next $500.
2. Claim exemptions on the certificate of value.
3. Check remote notarization compliance.

Citations

• SDCL § 43-4-21 (transfer fee): https://sdlegislature.gov/Statutes/43-4-21
• SDCL § 43-4-22 (exemptions): https://sdlegislature.gov/Statutes/43-4-22
• SDCL § 43-28-17 (recording act): https://sdlegislature.gov/Statutes/43-28-17
• SDCL § 18-1-11.2 (remote online notarization): https://sdlegislature.gov/Statutes/18-1-11.2

3. Securing Future Advances

Plain English

South Dakota's collateral real estate mortgage stays a continuing lien even at a zero balance. Advances up to the mortgage's face amount keep priority from the original filing date. The mortgage must carry the statutory capital-letter statement and title. It is effective for 5 years from filing plus 60 days; advances after that (other than protective advances for taxes, insurance and the collateral) are not secured unless the lender files an addendum within 6 months before and 60 days after the 5-year date, which continues it for another 5 years and 60 days. At a zero balance, the borrower may demand satisfaction in writing, and the lender must record it within 10 days.

Key Rules

• Collateral mortgage (SDCL § 44-8-26). Face amount; zero balance; 5 years plus 60 days, renewable by addendum.

Practice Points

1. Check the term and any addendum before relying on the mortgage.
2. HELOC payoffs: send the written demand for satisfaction.
3. Advances over the face amount aren't protected.

Citations

• SDCL § 44-8-26 (collateral real estate mortgages): https://sdlegislature.gov/Statutes/44-8-26

4. Subdivision Statutes and Regulations

Plain English

A South Dakota plat inside or next to a city is approved by the city's governing body (or its designated official); outside a city, by the county commissioners (or their designee). The auditor or finance officer endorses the approval on the plat, and a plat without it cannot be recorded. The filed Lindeman case is a reminder that a "boundary dispute" exception doesn't always defeat the duty to defend.

Key Rules

• Platting (SDCL §§ 11-3-6, 11-3-8). Approval endorsed on the plat before recording; taxes and special assessments must be paid.
• Duty to defend (filed Lindeman v. Chicago Title).

Practice Points

1. New lot? Get the approved, recorded plat.
2. Boundary exceptions: be specific.
3. Get a survey when boundaries matter.

Citations

• SDCL ch. 11-3 (plats): https://sdlegislature.gov/Statutes/11-3
• SDCL § 11-3-6 (city approval): https://sdlegislature.gov/Statutes/11-3-6
• SDCL § 11-3-8 (county approval): https://sdlegislature.gov/Statutes/11-3-8

5. Title Premium Rates

Plain English

South Dakota title rates must be reasonable and adequate and are filed with and approved by the Division of Insurance director before use; a filing not disapproved within 15 days (30 if extended) is deemed approved. Insurers must hold to approved rates: no deviations, rebates or discounts. A county-licensed abstracter must direct the title search and countersign the policy; the countersignature fee is capped at 50% of the filed all-inclusive premium, plus $75 per additional chain of title.

Key Rules

• Rates (SDCL §§ 58-25-3, 58-25-7, 58-25-9, 58-25-10). Reasonable and adequate; filed and approved.
• No deviations or rebates (SDCL § 58-25-13).
• Countersignature (SDCL § 58-25-16). By a county-qualified abstracter; violation is a Class 2 misdemeanor.
• Title search (ARSD 20:36:07:02). Licensed abstracter.
• Countersignature fee (ARSD 20:36:08:01). 50% cap.

Practice Points

1. Use a licensed abstracter in the county.
2. Check the countersignature split.
3. Quote only approved rates; no deviations or rebates (SDCL § 58-25-13).

Citations

• ARSD 20:36:07:02 (title search): https://www.law.cornell.edu/regulations/south-dakota/ARSD-20-36-07-02
• ARSD 20:36:08:01 (countersignature fee): https://www.law.cornell.edu/regulations/south-dakota/ARSD-20-36-08-01
• SDCL ch. 58-25 (title insurance rates): https://sdlegislature.gov/Statutes/58-25

6. Recording Taxes & Fees on Deeds and Mortgages

Plain English

South Dakota charges a real estate transfer fee of 50 cents per $500 of price. A certificate of value goes with the deed. South Dakota has no mortgage tax.

Key Rules

(a) Deed transfer, conveyance or excise tax

• Rate. $0.50 per $500 (SDCL § 43-4-21).
• Who pays. The grantor, by statute (SDCL § 43-4-21).
• Certificate of value (SDCL § 7-9-7).

(b) Mortgage, indebtedness or intangible tax

• None. South Dakota has no mortgage, indebtedness or intangible tax on recording a mortgage or deed of trust, so future advances, credit lines, refinances and modifications carry no state recording tax (only recording fees).

(c) Other recording taxes and fees

• Register of deeds fees (SDCL § 7-9-15). $30 for the first 50 pages, plus $2 for each added page.

Practice Points

1. Worked example. A $400,000 sale: $400.

Citations

• SDCL § 43-4-21 (transfer fee)
• SDCL § 7-9-7 (certificate of value)
• SDCL § 7-9-15 (fees)