SOUTH DAKOTA

LIEN LAWS BY STATE
DISCLAIMER: TRADITION SOFTWARE, INC. makes no warrant, express or implied for the use of this website. In no event shall TRADITION SOFTWARE, INC. be liable to anyone for any problem, claim or loss arising out of the use of TraditionSoftware.com. TRADITION SOFTWARE, INC. is not engaged in practicing law nor does TRADITION SOFTWARE, INC. provide legal advice.
SOUTH DAKOTA CODIFIED LAWS
TITLE 44 LIENS

CHAPTER 44-9 MECHANICS’ AND MATERIALMEN’S LIENS

44-9-1 Persons Entitled to Lien

44-9-2 Authorization of Improvements, Repairs by Lessee

44-9-3 Lien on Title of Vendor

44-9-4 Notice of Nonresponsibility, Posting, Service

44-9-5 Homestead

44-9-6 Amount of Lien

44-9-7 Priorities

44-9-8 Bonafide Purchasers

44-9-9 Prorata Payment of Liens

44-9-10 Service of Sworn Account, Withholding of Funds

44-9-11 Payments to Claimant, Disputes

44-9-12 Recovery from Owner

44-9-13 Diversion of Funds, Theft

44-9-14 Demand for Verified Account

44-9-15 Statement of Claim, Filing

44-9-16 Statement of Claim, Contents

44-9-17 Service of Lien Statement

44-9-18 Filing and Indexing

44-9-19 Fees

44-9-20 Claims Against Multiple Improvements

44-9-21 Satisfaction of Lien

44-9-22 Demand for Satisfaction, Penalty, Attorneys Fees

44-9-23 Venue, Proceedings

44-9-24 Limitations

44-9-25 Parties

44-9-26 Demand for Commencement of Action

44-9-27 Summons and Complaint

44-9-28 Notice of Pendency

44-9-29 Order to Appear, Publication

44-9-30 Consolidation

44-9-31 Bill of Particulars

44-9-32 Pleadings

44-9-33 Proceedings

44-9-34 Receiver

44-9-35 Receivership

44-9-36 Receiver’s Certificates

44-9-37 Compensation of Receiver

44-9-38 Power to Appoint Receiver

44-9-39 New Parties, Postponements

44-9-40 Judgment, Costs

44-9-41 Costs

44-9-42 Attorney’s and Receiver’s Fees

44-9-43 Personal Judgment, Subrogation

44-9-44 Sale, Proceeds, Distribution Prorata

44-9-45 Leasehold, Redemption

44-9-46 Severance of Building

44-9-47 Confirmation of Sale

44-9-48 Resale

44-9-49 Ordinary Actionsz

CHAPTER 44-9A CONSTRUCTION LIEN WAIVER AGREEMENTS

44-9A-1 Waivers

44-9A-2 Endorsement of Joint Check and Agreement of Waiver

44-9A-3 Joint Check Provision

44-9A-4 Joint Check Endorsement, Effect

44-9A-5 Release of Proceeds of Joint Check

SOUTH DAKOTA CODIFIED LAWS

TITLE 44 LIENS

CHAPTER 44-9 MECHANICS’ AND MATERIALMEN’S LIENS

44-9-1 Persons Entitled to Lien

Whoever shall, at the request of the owner or the duly authorized agent or representative of the owner, or of any contractor or subcontractor, furnish skill, labor, services, including light, power, or water, equipment, or materials for the improvement, development, or operation of property as hereinafter specified, shall have a first lien thereon and the appurtenances thereto, prior and superior to all other liens except those of the state or of the United States, and except existing liens, mortgages, or other encumbrances then of record or of which the lien claimant has actual notice, for the price or value of the same, so furnished, subject to the further provisions of this chapter, as follows:

(1) For the erection, alteration, repair, or removal of any building, fixture, bridge, fence, or other structure or for grading, filling in, or excavating the same, or for digging or repairing any ditch, drain, well, cistern, reservoir, or vault thereon or for laying, altering, or repairing any sidewalk, curb, gutter, paving, sewer, pipe, or conduit in or upon the same or in or upon the adjoining half of any highway, street, or alley upon which the property abuts, a lien upon the said improvement and the land on which it is situated, or to which it may be removed;

(2) For the construction, alteration, or repair of any line of railway or of any telegraph, telephone, electric light, or power line, or of any line of pipe, conduit, or subway or any structure, appliance, or fixture upon or appertaining to any of them, a lien upon the public utility so constructed, altered, or repaired and upon the line, plants, and property thereof and upon all the rights, franchises, and privileges of the owner appertaining thereto;

(3) Upon any mine or mining claim, oil or gas well or spring, a lien upon the same and any rights, privileges, franchises, easements, and tangible property and other property or appliances appurtenant thereto, for any of the items hereinbefore specified or referred to as giving right to a lien.

44-9-2 Authorization of Improvements, Repairs by Lessee

When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior encumbrancers or lienors shall be deemed to have authorized such improvements, insofar as to subject their interests to the liens therefore; provided that as against a lessor no lien is given for repairs made by or at the instance of his lessee.

44-9-3 Lien on Title of Vendor

Whenever land is sold under an executory contract authorizing the vendee to improve the same, and such contract is forfeited or surrendered after liens have attached by reason of such improvements, the title of the vendor shall be subject thereto, but he shall not be personally liable if the contract was made in good faith.

44-9-4 Notice of Nonresponsibility, Posting, Service

Any person who has not authorized the improvement may protect his interests from such liens by serving upon the persons doing the work or otherwise contributing to such improvement, within five days after knowledge thereof, written notice that the improvement is not being made at his instance, or by posting like notice, and keeping the same posted, in a conspicuous place on the premises.

44-9-5 Homestead

The lien shall not extend to nor affect any rights in any homestead so far as the same is exempt from levy and sale on execution.

44-9-6 Amount of Lien

If the contribution be made under a contract with the owner and for an agreed price, the lien as against him shall be for the sum so agreed upon together with the cost of any additional material or work agreed upon, otherwise, and in all cases as against others than the owner, it shall be for the reasonable value of the work done, and of the skill, material, and machinery furnished.

44-9-7 Priorities

Such lien as against the owner of the property shall attach and take effect from the time the first item of material or labor is furnished upon the premises by the lien claimant, and shall be preferred to any mortgage or other encumbrance not then of record, unless the lien holder had actual notice thereof.

44-9-8 Bonafide Purchasers

As against a bona fide purchaser, mortgagee, or encumbrancer without notice, however, no lien shall attach prior to the actual and visible beginning of the improvement on the ground, but a person having a contract for the furnishing of labor, skill, material, or machinery for such improvement, may file with the register of deeds of the county within which the premises are situated or of the county to which such county is attached for judicial purposes, or if claimed under subdivision (2) of section 44-9-1, with the secretary of state, a brief statement of the nature of such contract, which statement shall be notice of his lien for the contract price or value of all contributions to such improvement thereafter made by him or at his instance.

44-9-9 Prorata Payment of Liens

All liens, claims for labor performed, or services or materials furnished, as provided in subdivision (3) of section 44-9-1, shall be concurrent liens upon the property charged and shall be paid pro rata out of the proceeds arising from the sale thereof, if the same shall be sold, or upon settlement without sale.

44-9-10 Service of Sworn Account, Withholding of Funds

Any person furnishing any of the items for which a lien may be claimed under the provisions of section 44-9-1 under a contract, either express or implied between the owner of the property or his duly authorized agent or representative, and any contractor working upon or about such property may serve upon the owner, or his duly authorized agent or representative at any time, a sworn account and notice of his claim showing the items and amounts and the dates that the same were furnished, and thereupon the owner shall withhold from his contractor so much of the contract price as may be necessary to meet the claims of persons who have served such accounts and notices.

44-9-11 Payments to Claimant, Disputes

Whenever any such account and notice is served upon the owner of the property or his duly authorized agent or representative, he shall furnish his contractor with a copy of the same, and if such contractor shall not within fifteen days after the receipt of such account and notice give the owner, his agent, or representative, written notice that he intends to dispute the claim, he shall be considered as assenting thereto and such owner may pay the same to the claimant when it becomes due and deduct the amount out of any moneys due such contractor, who may in like manner deduct such amount from any moneys due from him to his subcontractor or the claimant.

44-9-12 Recovery from Owner

The amount which may be due from any contractor to his creditor may be recovered from said owner by the creditor of said contractor, in any action at law, to the extent and value of any balance due by the owner to his contractor under the contract with him, at the time of the notice first given as provided in section 44-9-10, or subsequently, according to such contract or under the same.

44-9-13 Diversion of Funds, Theft

Any contractor, subcontractor or supplier on any improvement of real estate, mines, or public utilities within the purview of this chapter who knowingly uses more than five hundred dollars of the proceeds of any payment made to him on account of such improvement by the owner of such real estate or person having the improvement made, for any other purpose than the payment for labor, skill, materials, and machinery contributed to such improvement while any account for such labor, skill, material, or machinery furnished for such improvement up to the time of such payment remains unpaid and due and owing under the credit terms arranged, is guilty of theft of the proceeds of such payment. It is not a violation of this section to withhold funds from a contractor, subcontractor or supplier pending the completion and final approval of his work or product.

44-9-14 Demand for Verified Account

The owner, by serving written request within fifteen days after the completion of the contract, may require any person who may have a lien under the provisions of this chapter, to furnish him an itemized and verified account of his lien claim, the amount thereof, and his name and address. No action or other proceeding shall be commenced for the enforcement of such lien until ten days after such statement is so furnished pursuant to the request of the owner. The word “owner” as used in this section shall include any person interested in the premises otherwise than as a lien holder thereunder.

44-9-15 Statement of Claim, Filing

The lien shall cease at the end of one hundred twenty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery, unless within such period a statement of the claim therefore be filed with the register of deeds of the county in which the improved premises are situated, or of the county to which such county is attached for judicial purposes, or if the claim be under the provisions of subdivision 44-9-1 (2), with the secretary of state.

44-9-16 Statement of Claims, Contents

Such statement shall be made by or at the instance of the lien claimant, shall be verified by the oath of some person shown by such verification to have knowledge of the facts stated, and shall set forth:

1) A notice of intention to claim and hold a lien, and the amount thereof;

(2) That such amount is due and owing to the claimant for labor performed, or for skill, services, material, or machinery furnished, and for what improvement the same was done or supplied;

(3) The names and post-office addresses of the claimant, and of the person for or to whom performed or furnished;

(4) The dates when the first and last items of the claimant’s contribution were made;

(5) A description of the property to be charged, identifying the same with reasonable certainty;

(6) The name and address of the owner thereof at the time of making such statement, according to the best information then had; and

(7) An itemized statement of the account upon which the lien is claimed.

44-9-17 Service of Lien Statement

Before filing such lien statement, the person claiming the lien shall mail to the property owner at his last known post-office address, by registered or certified mail, a copy of such lien statement and the post-office receipt for such mailing shall be attached to the lien statement and filed in the office of register of deeds.

44-9-18 Filing and Indexing

The register of deeds shall file such statement or lien in numerical order and enter the same upon a register to be kept for that purpose containing the name of the owner of the property against whom the lien is claimed, date of filing, amount, description of the property affected by the lien and a blank space for the date of release. In addition, if such lien affects the title to real property, he shall enter the same upon the mortgage or lien index described in section 7-9-9.

44-9-19 Fees

The register of deeds shall charge a fee of three dollars for the filing and indexing of any lien under the provisions of this chapter and the further sum of one dollar for the filing and indexing of any assignment or satisfaction of such lien, which sums may be taxed as costs in favor of the lien holder.

44-9-20 Claims Against Multiple Improvements

Except as in the case of condominiums under the provisions of section 43-15A-29, a lien holder who contributes to the erection, alteration, removal or repair of two or more buildings or other improvements situated upon or removed to one lot, or upon or to adjoining lots, under or pursuant to the purposes of one general contract with the owner, may file one statement for his entire claim, embracing the whole area so improved. Alternatively, he may apportion his demand between or among the several improvements and shall assert a lien for a proportionate part upon each and upon the ground appurtenant to each respectively.

44-9-21 Satisfaction of Lien

Whenever a lien has been claimed by filing the same in the office of the register of deeds and it is afterward satisfied by payment, foreclosure, compromise, or other method, the creditor shall execute and deliver to the owner of the property a satisfaction describing the lien by its date, date of filing, amount claimed, description of the property, and the names of the lien claimants and owner of the property. Such satisfaction shall be executed before two witnesses or acknowledged before a notary public, and upon presentation to the register of deeds, he shall file the same and cancel the said lien of record.

44-9-22 Demand for Satisfaction, Penalty, Attorneys Fees

If any holder of a lien under the provisions of this chapter shall neglect to execute and deliver such satisfaction within ten days after written demand therefore by the owner of the property or any person interested therein, when such lien has in fact been satisfied as provided in § 44-9-21, he shall be liable to the person demanding such satisfaction for all damages, costs, and expenses, including attorney’s fees, and an additional penalty of one hundred dollars.

44-9-23 Venue, Proceedings

The lien may be enforced by action in the circuit court of the county in which the improved premises or some part thereof are situated, or of the county to which such county is attached for judicial purposes, or, if claimed under subdivision 44-9-1(2), of any county through or into which said railway or other lien extends, which action shall be begun and conducted in the same manner as actions for the foreclosure of mortgages upon real estate, except as herein otherwise provided.

44-9-24 Limitations

No lien shall be enforced in any case unless the holder thereof shall assert the same, either by complaint or answer, within six years after the date of the last item of his claim as set forth in the filed and entered lien statement; nor shall any person be bound by the judgment in such action unless he is made a party thereto within said six years.

44-9-25 Parties

The action to foreclose the lien may be commenced by any lien holder who has filed his lien statement as required in this chapter, and all other such lien holders who are not joined with him as plaintiffs shall be made defendants. Any such lien holder not named as a defendant may nevertheless answer the complaint and be admitted as a party. All parties having liens under this chapter may join as plaintiffs, if they so desire, prior to the commencement of any action by a single lien holder.

44-9-26 Demand for Commencement of Action

Upon written demand of the owner, his agent, or contractor, served on any person holding a lien, requiring him to commence suit to enforce such lien, such suit shall be commenced within thirty days after such service, or the lien shall be forfeited.

44-9-27 Summons and Complaint

The action shall be commenced by issue of a summons and filing complaint in the office of the clerk of courts.

44-9-28 Notice of Pendency

At the beginning of the action the plaintiff shall file for record with the register of deeds of the county in which the action is pending and of the several counties into which the utility extends, if the lien is claimed under subdivision 44-9-1(2), a notice of the pendency thereof. After such filing no other action shall be commenced for the enforcement of any lien arising from the improvement described, but all such lien claimants shall intervene in the original action by answer as provided in section 44-9-25.

44-9-29 Order to Appear, Publication

Upon the application of the plaintiff, or anyone claiming an interest in the property, the court may make an order requiring all persons claiming any interest in the property or lien thereon to appear in the action, either by complaint in intervention or by answer, and to set up whatever rights, claims, or interests they may have in and to the property involved in the action, within a time to be fixed by the court in its order, which shall not be less than sixty days after the first publication of the same. The order shall be published in a legal newspaper of the county once each week for at least four weeks, and if within the time specified in said order, any party shall not appear and assert his claim by proper pleading, he shall be forever barred from claiming any right, lien, or interest against the property, and judgment shall be entered in favor only of those who appear and establish their liens, claims or interests.

44-9-30 Consolidation

If more than one action shall be commenced in good faith for foreclosure of liens upon the same property, all shall be consolidated and tried as one, under such order of the court as may best protect the rights of all parties concerned.

44-9-31 Bill Particulars

Each lien holder shall attach to and file with his complaint or answer a bill of the items of his claim, verified by the oath of some person having knowledge thereof, and shall file such further and more particular account, as the court may at any time direct. Upon his failure to file such original or further bill, his pleading shall be stricken out and his claim disallowed.

44-9-32 Pleadings

All averments of the answer shall be deemed denied without further pleading.

44-9-33 Proceedings

All provisions of Title 15 shall be applicable to foreclosure actions under this chapter, except where a different intention
plainly appears from the provisions of this chapter.

44-9-34 Receiver

Whenever action has been commenced for the foreclosure of liens, under this chapter, and a majority of the lien holders, parties to such action, shall by motion request the appointment of a receiver the court may appoint a receiver to take possession of all the property covered by such liens and to take care of and preserve the same.

44-9-35 Receivership

In all cases of liens arising under the provisions of subdivision 44-9-1 (2) a receivership may be created in the first instance instead of directing a sale of the property.

44-9-36 Receiver’s Certificates

The court may authorize such receiver to issue receiver’s certificates to persons furnishing services, supplies, or equipment only to the extent necessary for preservation of such property, and for taxes, insurance, and similar charges necessary to protection of the property. Such certificates maybe made prior and preferred claims to all other liens of every kind and character, except court costs and expenses of sale, if such priority and preference shall be deemed necessary by the court for proper preservation and care of the property. The provision for such receiver’s certificates may be made in the judgment of foreclosure or in any intermediate judgment or supplemental judgment.

44-9-37 Compensation of Receiver

The compensation of the receiver shall be fixed at a reasonable daily rate by order of the court for each day that the receiver is actually engaged in the performance of his duties.

44-9-38 Power to Appoint Receiver

Nothing in Sections 44-9-34 to 44-9-37, inclusive, shall abridge the power of the court otherwise to appoint a receiver under the provisions of chapter 21-21.

44-9-39 New Parties, Postponements

If upon the trial of such action, or at any time before the rendition of final judgment therein, it shall appear to the satisfaction of the court that a proper party who may still be brought in has been omitted, or that any party then entitled to answer has not yet appeared, or that for any other reason the trial or judgment should be delayed, or the judgment as ordered or entered be modified, the court may postpone the trial, or make such other or further order in the premises as shall be just, and if it be found that any indebtedness for which a lien is demanded be not then due, the same shall be allowed for the amount of its present worth.

44-9-40 Judgment, Costs

Judgment shall be given in favor of each lien holder for the amount demanded and proved by him, with costs and disbursements to be fixed by the court at the trial, and such amount shall not be included in the lien of any other party.

44-9-41 Costs

The clerk of the courts shall tax the same costs as are allowed in foreclosures of real estate mortgages. The lien claimant shall be entitled to tax as costs, in addition to all other costs allowed by law, the sum of five dollars for the preparation of the lien statement and account for filing with the register of deeds.

44-9-42 Attorney’s and Receiver’s Fees

The court shall have authority in its discretion to allow such attorney’s fees and receiver’ s fees and other expenses as to it may seem warranted and necessary according to the circumstances of each case, and except as otherwise specifically provided in this chapter.

44-9-43 Personal Judgment, Subrogation

If, after judgment, a lien holder who is personally indebted for the amount of any lien so adjudged in favor of another shall pay such indebtedness, he shall thereby become subrogated to the rights of the person so paid.

44-9-44 Sale, Proceeds, Distribution Prorata

The judgment shall direct a sale of the real estate or other property for the satisfaction of all liens charged thereon, and the manner of such sale, subject to the rights of all persons which are paramount to such liens or any of them. It shall require the officer making such sale to pay over and distribute the proceeds of the sale, after deducting all lawful charges and expenses, to and among the lienors to the amount of their respective claims, if there is sufficient therefore; and if there is not sufficient then to divide and distribute the same among the several lienors in proportion to the amount due to each, and without priority among themselves.

44-9-45 Leasehold, Redemption

If the estate sold be a leasehold having not more than two years to run, or be the interest of a vendee under an executory contract of sale the conditions whereof are to be performed within the same period, no redemption shall be allowed; in all other cases the right of redemption shall be the same as upon execution sales.

44-9-46 Severance of Building

If, without material injury to the building or other improvement to which the lien holder has contributed, the same can be severed and removed from the land, the judgment, in the discretion of the court, may direct the sale of such improvement, with the privilege to the purchaser of removing the same at any time within sixty days, unless before such removal the owner or other persons interested in the land shall pay to the sheriff, for the purchaser, the amount realized from the sale, with interest and all expenses incurred toward such removal.

44-9-47 Confirmation of Sale

No sale shall be deemed complete until reported to and confirmed by the court.

44-9-48 Resale

If in any case the sale be not confirmed, the court may direct a resale, or if deemed best may appoint a receiver to lease or otherwise handle the property under its direction, in the interests of all persons concerned.

44-9-49 Ordinary Actions

No failure to comply with any of the provisions of this chapter shall affect the right of any person to recover, in an ordinary civil action, from the party with whom he has contracted.

CHAPTER 44-9A CONSTRUCTION LIEN WAIVER AGREEMENTS

44-9A-1 Waivers

Liens for materials, supplies, equipment and services furnished under construction contracts to contractors or subcontractors and arising under Title 5 or Title 44 of the South Dakota Codified Laws or by virtue of the common law of this state may be expressly waived as provided in this chapter in addition to all other means presently existing under law by which such liens may be waived.

44-9A-2 Endorsement of Joint Check and Agreement of Waiver

Any lien to which a person or corporation furnishing materials, supplies, equipment and services to a contractor or subcontractor would otherwise be entitled under Title 5 or Title 44 of the South Dakota Codified Laws or by virtue of the common law of this state may be waived to the extent provided in this chapter by such person or corporation by the endorsement of a joint check wherein the payees include the contractor or subcontractor and the person or corporation furnishing materials, supplies, equipment and services and by the execution of a separate agreement of waiver between the maker of the joint check and such person or corporation.

44-9A-3 Joint Check Provisions

A joint check as used for the purposes provided in this chapter must have a provision on the reverse side thereof making reference to a separate written agreement of waiver between the maker and the person or corporation furnishing materials, supplies, equipment or services to the contractor or subcontractor. Such provision must be conspicuous and mention that the payees, by their endorsements and in consideration of the payment represented by the joint check, jointly and severally waive all claims to which they might be entitled under Title 5 and Title 44 of the South Dakota Codified Laws and the common law of South Dakota for all materials, supplies, equipment and service supplied under a clearly identified contract to the extent of and of the date of the joint check.

44-9A-4 Joint Check Endorsement, Effect

The endorsement of a joint check as provided herein and the execution of a separate written agreement of waiver by a person or corporation furnishing materials, supplies, equipment and services to an owner, contractor, or a subcontractor shall constitute an express waiver of all rights and claims under Title 5 and Title 44 of the South Dakota Codified Laws and the common law of this state against the owner or contractor and his surety to the extent of, and as of the date of, the joint check endorsed.

44-9A-5 Release of Proceeds of Joint Check

It shall be of no consequence under this chapter if the payment or any part thereof in such joint check is released to the contractor or subcontractor by another payee. Release of such funds is at the peril of the person or corporation furnishing materials, supplies, equipment and services to the contractor or subcontractor.