Housing Law - Landlord-Tenant

Anyone who rents a house, apartment, or mobile home is a tenant. Renting, also called leasing, is an arrangement by which a landlord gives a tenant temporary possession and use of property for rent, and the tenant agrees to pay rent and to return the property to the landlord at a future time. If a person rents a sleeping, motel or hotel room for four (4) weeks in a row or more, you are a “tenant” under law. The information provided here applies to private, as well as public housing (such as Lakota Homes, Section 8, and HUD housing) landlord/tenant relationships. Public Housing tenants also need to look to their lease, as they have added rights and duties under Federal law.

What about discrimation by a landlord?

Persons leasing a dwelling should also be aware that Federal law prohibits, with few exceptions, a landlord from discriminating against any person in the rental of a dwelling, or the terms, conditions or services of the rental on the basis of race, color, religion, sex or national origin of the tenant.  There are also added legal rights for disabled tenants. If you believe you have been discriminated against, see an attorney or contact Federal Department of Housing and Urban Development (HUD).

THE LEASE

What is a written lease?

Written leases usually state the most important terms of a rental agreement, including the length of the rental period, the amount of rent, and the notice necessary to end the lease.  Tenants need to read each word of any paper he/she signs.  Make sure it states the terms of the lease to which the tenant and landlord agreed.  The tenant needs to decide if he/she is willing to rent the unit under the leases terms.  If the tenant has questions, they need to ask the landlord or see an attorney. If the tenant does not like the answers or does not like the lease, he/she can refuse to rent the unit or get the landlord to change the lease before it is signed.  Generally any changes in the terms of the lease must be initialed by both the landlord and the tenant to be effective. The tenant should be sure to keep a copy of the lease in a safe place, where is can be found when needed.

How do oral (unwritten) leases work?

Sometimes, there is no written lease. Then the rental period runs for the period of time for which the rent is paid. If no rental period is stated in a written lease, this also applies.  For example, if rent is paid once a month, then the lease is on a “month-to-month” basis. This means that the tenant must give the landlord one month’s notice prior to moving out, and the landlord must give the tenant one month’s notice in order to end the lease and have the tenant move.

How can a landlord change the lease?

Under a month-to-month tenancy agreement, the landlord may, upon giving notice in writing at least thirty days before the expiration of the month, modify the terms of the lease (such as increase rent) to take effect at the expiration of the month.  The tenant may refuse to agree with the change and move from the premises. To do so, the tenant may terminate the lease effective the first day of the next month by providing notice of termination to the landlord within fifteen (15) days of receipt by the tenant of the notice of modification.

Can the landlord enter the unit?

Generally the landlord may lawfully enter the rental unit without giving notice to the tenant in the event of an emergency.  The landlord has the right to make an inspection of the rental unit at a reasonable time, but only after reasonable notice is given to the tenant. “Reasonable notice” is generally considered to be 24 hours in advance of entry into the rental.

REPAIRS

A landlord must keep the rental unit in reasonable repair and fit for humans to live in (except for damage caused by the tenant’s fault). This reasonable repair includes keeping all electrical, plumbing, and heating systems in good and safe working order. This duty cannot be ended or changed by the landlord or tenant. However, the landlord and tenant can agree to let the tenant make certain repairs instead of paying some or all of the rent. The tenant should obtain such an agreement in writing.

What can the tenant do if no repairs are made?

If the landlord fails or refuses to make needed repairs, the tenant must give written notice to the landlord of the specific repairs to be made. The tenant then can act only if the landlord fails to make the repairs. If a tenant does not have heat, water, or electric power, an emergency situation exists and the tenant should demand immediate action from the landlord. The tenant needs to keep a copy of any written notice given or mailed to the landlord.

Once the written notice has been given and a reasonable time passes, if the landlord has not made the repairs, the tenant can do one of two things:

  1. The tenant may vacate the premises, in which case he/she shall be discharged from additional charges of rent or performance of other conditions; or

  2. The tenant may make the needed repairs, in which case the tenant may subtract the cost of the needed repairs from the rent. If the cost of needed repairs is more than one month’s rent, the tenant must put the rent in a bank account opened only for the purpose of depositing the withheld rent. The tenant must give the landlord written proof of the rent money deposits into the account. The bank account is to be kept until either the landlord makes the repairs (the rent in the account is then given to the landlord), or enough rent is in the account for the tenant to make the repairs. Then, the tenant uses the money for the repairs and gives copies of the receipts for the work, and any remaining rent money, to the landlord.

What if the tenant caused damages?

In addition to the tenant’s duty to pay rent, he/she is required to repair all damages to the rental units caused by the tenant, his/her family members, or uninvited guests. A tenant is not responsible for ordinary “wear and tear” to the rental unit.

LOCKOUT AND LANDLORD UTILITY SHUT-OFFS

A landlord may seek an eviction order from a Court (see “Eviction” below), but a landlord cannot take matters into his/her own hands and lock a tenant out of the rental unit or cut off electricity, gas, water, or other essential services to the rental unit, the tenant has the right to sue the landlord for:

  1. Return of the rental unit to the tenant, terminate the agreement and/or re-connection any cut off utilities; and,

  2. An amount equal to two month’s rent, plus advance rent paid and the amount of any security deposit paid by the tenant.

A landlord also does not have the right to unlawfully keep or withhold personal property of the tenant unless it is abandoned (see below).

EVICTIONS

When can a tenant be evicted?

The tenant may vacate the premises, in which a landlord can bring an eviction (“forcible entry and case he/she shall be discharged from additional detainer action”) in Court if:

  1. The tenant is not in lawful possession of the rental unit (for example, the tenant remains in the rental unit after the time states in the termination of lease or the tenant fails to pay rent for more than three (3) days after it is due); or;

  2. The tenant greatly damages the rental unit; or

  3. The tenant does something which the lease states cannot be done (for example, tenant has pets in the rental unit and the lease says the tenant can be evicted if he/she has pets); or,

  4. The tenant fails to do something which the lease states must be done or the tenant will be evicted (for example, the tenant agrees, in the lease, to make certain repairs on the rental instead of paying the rent and then does not make the repairs); or,

  5. In a monthly tenancy, the tenant fails to vacate the premises after receiving a one month notice from the landlord of an intent to not renew the lease even if the tenant has not violated any terms of the lease.

How does an eviction work?

Under South Dakota law, these are the steps the landlord must take to remove a tenant, if the tenant will not move voluntarily from the rental unit:

  1. In most cases, the landlord must provide the tenant with a written Three (3) Day Notice: the notice tells the tenant that he/she has three days to leave the rental unit or a legal action will begin to force the tenant out. The three days or three business days do not include Saturdays, Sundays, or legal holidays:

  2. If the tenant remains in the rental unit after three days, the landlord must have a Summons and Complaint personally served on the tenant. A Summons and Complaint are legal papers which begin legal action in Court. The tenant should see an attorney immediately since he/she has only four (4) business days to respond to the Summons and Complaint of the landlord by serving a document called an Answer.

  3. If the tenant does not Answer within four days of receiving the Summons and Complaint, the landlord can get a Court Order which orders the County Sheriff to move the tenant out of the rental unit.

  4. If the tenant obtains an attorney and Answers, claiming that he/she has the right to stay in the rental unit, a trial will be held in Court. The judge will then listen to both the landlord’s side and the tenant’s side and decided if the tenant should be evicted or if he/she can remain in the rental unit.

If the tenant moves out before the trial, the eviction action may end, but the landlord can continue the action for any rent and/or damages caused by the tenant to the rental unit, as well as Monetary damages caused by the tenant’s failure to move.

If the landlord wins the trial, the Court will Order the tenant to leave the rental unit and to pay any rent due. The tenant may also be ordered to pay the landlord’s attorney fees and costs of the court action (filing and service fees, etc.) In some cases, the landlord can recover doble rent for the time the tenant has remained in the rental unit after the end of the three day notice to vacate time period.

If the tenant wins at trial, he/she will be allowed to remain living in the rental unit for the length of the rental agreement. This would not prevent the landlord from giving the tenant a month’s notice to move, if the lease is month-to-month and not a subsidized housing lease. Even if the tenant wins, he/she will still have to pay rent.

RETALIATORY EVICTIONS

A retaliatory eviction is when a landlord greatly increases rent, or decreases or disconnects utilities, or demands that the tenant move simply because the tenant has done any of the following:

  1. The tenant complained to a government agency, such as a Court Housing Authority or City Building Inspector’s Office, regarding housing or building code violations that affect the health and safety of the rental unit. The complaint must be “in good faith” (made honestly); or,

  2. The tenant gave the landlord written notice of repairs that are needed on the rental unit; or,

  3. The tenant started or joined a tenant’s rights group or a “tenant’s union”.

The following are NOT considered a retaliatory eviction under law. If the landlord gives tenant a notice to move 180 days (6 months) or more after the tenant does one of the above, or the landlord does not renew a written lease when it ends (for example, tenant has a written month-to-month lease, tenant joins a tenant’s union in early June. In late June, the landlord serves tenant notice that lease will end on July 31st, this is not retaliation under the law.)

If the landlord does violate the retaliation law, the tenant has the right to sue the landlord for damages as if the tenant had been locked out by the landlord, plus sue for up to $500.00 in fees for the tenant’s attorney.

REMEMBER: To fight an eviction, a tenant needs to contact an attorney as soon as they are served with a Three Day Notice or Summons and Complaint.

DEPOSITS

How can a tenant prevent deposit hassles?

Most landlords require a security deposit (aka damage deposit, rent deposit, etc.) to be paid by a tenant at the beginning of the lease.  Before moving in, the tenant should inspect the rental unit with the landlord and write out a list of any damages, whether large or small, that have already been done to the rental unit (spots on carpets, broken windows, marks on wall, stove not working, etc.) Both the landlord and tenant should sign the paper and each keep a copy. This will protect both parties from later misunderstandings about what damage the tenant caused. If the landlord is unwilling to make the move-in inspection, the tenant should make one anyway and mail a Certified Return Receipt copy of the damaged list to the landlord. Keeping the paperwork, the tenant can prove, if he/she needs to, that the landlord knew of the old damages to the old rental unit when the tenant moved in.

A landlord cannot require a security deposit in excess of one month’s rent “special conditions” exist which pose a danger to the condition of the premises. This may include large or many pets or other things which may likely cause damage, by the tenant, to the rental unit.

How can a tenant get the security deposit back?

When a tenant moves out, the landlord must return the deposit or send a written statement, the tenant, showing specific reason(s) for not returning the deposit. The refund or statement must be sent within two (2) weeks after the tenant has moved out and the landlord has received the tenant’s mailing address or delivery instructions. The landlord may keep from the deposit only such money as is necessary to either cover unpaid rent or to return the rental unit to the way it was at the start of the tenant’s leasing of the rental unit. Costs to repair “ordinary wear and tear” cannot be included in the money the landlord may keep. The tenant may also demand a listing of how the deposit money was spent by the landlord. This must be given to the tenant within forty-five (45) days after the tenant moves out. Every time a tenant moves, he/she should write a letter and send a copy Certified Return Receipt to the landlord notifying the landlord of the tenant’s new address and demanding the return of the deposit. The letter should also ask for a listing of how any of the deposit money kept by landlord was used.

If the landlord keeps all or part of the deposit without good reason or fails to send the tenant the proper notices, the landlord can be sued in Small Claims Court for the deposit return. Up to $200 can also be awarded to the tenant for punitive (punishment) damages if, the landlord, in “bad faith” (knowing law and not following), fails to refund all or part of the deposit or, the landlord does not provide the tenant with the 2-week statement or 45-day itemized listing, as required by law.

What happens to property left on rental premises?

The landlord must handle property left on the rental premises, by a tenant who has moved, as follows: Property having a total reasonable value which does not exceed $500 is, under law, abandoned by the tenant after ten (10) days of the tenants move from the rental unit. The property may then be disposed of by the landlord according to abandoned property laws. Property with a total reasonable value of over $500 must be stored by the landlord for thirty (30) days after the tenant moves. If the tenant does not claim the property, the landlord may treat the property as abandoned and dispose of it according to law. If the property is claimed by the tenant, the landlord can make tenant pay reasonable handling and storage costs.

Table of Contents