Real Property – Seller’s Disclosures – South Dakota

§ 43-4-37. Definition of terms for required disclosures in certain real estate transfers.

Terms used in §§43-4-38 to 43-4-44, inclusive, mean:

(1) “Buyer,” a person negotiating or attempting to become an owner of residential real property by means of a transfer which is subject to §§ 43-4-38 to 43-4-44, inclusive;

(2) “Disclosure statement,” the property condition disclosure statement as provided in § 43-4-44;

(3) “Residential real property,” all residential real property consisting of not more than four family dwelling units, all of which are contained in one structure;

(4) “Seller,” an owner of residential real property;

(5) “Transfer,” a sale, exchange, installment sale contract, lease with an option to purchase, other option to purchase or a ground lease coupled with improvements.

Source: SL 1993, ch 325, § 1; 1994, ch 337, § 1.

§ 43-4-38. Buyer furnished completed disclosure statement prior to written offer – Amendment.

The seller of residential real property shall furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer. If after delivering the disclosure statement to the buyer or the buyer’s agent and prior to the date of closing for the property or the date of possession of the property, whichever comes first, the seller becomes aware of any change of material fact which would affect the disclosure statement, the seller shall furnish a written amendment disclosing the change of material fact.

Source: SL 1993, ch 325, § 2; 1994, ch 337, § 2; 1995, ch 247.

§ 43-4-39. Terminating written offer made prior to disclosure statement.

If the disclosure statement or a material amendment to the disclosure statement is delivered to the buyer after the buyer has made a written offer, the buyer may terminate the offer by delivering a written notice of termination to the seller or the seller’s agent within three days after the disclosure statement or amendment is delivered in person or within six days after the disclosure statement or amendment is delivered by deposit in the mail.

Source: SL 1993, ch 325, § 3.

§ 43-4-40. Liability for defect disclosed in statement.

Except as provided in §43-4-42, a seller is not liable for a defect or other condition in the residential real property being transferred if the seller truthfully completes the disclosure statement.

Source: SL 1993, ch 325, § 4; 1994, ch 337, § 3.

§ 43-4-41. Good faith disclosure required.

The seller shall perform each act and make each disclosure in good faith.

Source: SL 1993, ch 325, § 5.

§ 43-4-42. Liability for failure to comply with disclosure statement requirements.

A transfer that is subject to §§ 43-4-37 to 43-4-44, inclusive, is not invalidated solely because a person fails to comply with §§43-4-37 to 43-4-44, inclusive. However, a person who intentionally or who negligently violates §§43-4-37 to 43-4-44, inclusive, is liable to the buyer for the amount of the actual damages and repairs suffered by the buyer as a result of the violation or failure. A court may also award the buyer costs and attorney fees. Nothing in this section shall preclude or restrict any other rights or remedies of the buyer.

Source: SL 1993, ch 325, § 6.

§ 43-4-43. Application of disclosure statement requirements.

Sections 43-4-37 to 43-4-44, inclusive, do not apply to the following transfers:

(1) Transfers pursuant to court order, including transfers ordered by probate court in the administration of an estate, transfers between spouses resulting from a judgment of dissolution of marriage or legal separation, transfer pursuant to a writ of execution, transfers by a trustee in bankruptcy, transfers by eminent domain, transfers by government agencies, and transfers resulting from a decree for specific performance;

(2) Transfers to a mortgagee by a mortgagor in default, transfers by any foreclosure sale after default in an obligation secured by a mortgage, transfers by a mortgagee or a beneficiary under a deed of trust who has acquired the real property by foreclosure or by a deed in lieu of foreclosure or transfers by a collateral assignment of beneficial interest;

(3) Transfers by a fiduciary in the course of the administration of a decedent’s estate, guardianship, conservatorship, or trust;

(4) Transfers from one co-owner to one or more other co-owners;

(5) Transfers made to a spouse, a child, a parent, a sibling, a grandchild, or a grandparent;

(6) Transfers of newly constructed residential real property which has never been occupied.

§ 43-4-44. Property condition disclosure statement.

The following form shall be used for the property condition disclosure statement:

[See USLF form SD-37014] Source:  SL 1993, ch 325, § 8; 1994, ch 337, § 4.