South Dakota Mechanics Lien Guide and FAQs

Last updated July 24, 2024

If contractors and suppliers don’t get paid on a construction project in South Dakota, they can file a mechanics lien to secure payment. A mechanics lien is a legal tool that provides the unpaid party with a security interest in the property. This page breaks down the rules, requirements, and deadlines you need to follow to file a South Dakota mechanics lien.

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South Dakota lien law FAQs

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5 essential things to know about South Dakota mechanics liens

How to file a Mechanics Lien in South Dakota

South Dakota Mechanics Lien statutes

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South Dakota lien law deadlines for:

Prime Contractors
Subs/Laborers
Suppliers/Others

Preliminary notice deadlines

30 days

Optional notice of project commencement due 30 days after commencement. Location Notice must be displayed at jobsite.

Mechanics lien deadlines

120 days

Lien must be filed w/in 120 days after last labor or materials furnished.

Enforcement deadlines

6 years

In South Dakota, an action to enforce a mechanics lien must be initiated within 6 years from the claimant's last furnishing labor or materials.

Note that the property owner can dramatically shorten this deadline. If the owner gives request to have lawsuit initiated sooner, the deadline is shortened to within 30 days of receipt of that request.

Preliminary notice deadlines

60 days

If general contractor filed and posted Notice of Commencement, sub-subcontractors and suppliers to subcontractors must give Preliminary Notice (to owner and general contractor) within 60 days of last furnishing labor or materials.

Mechanics lien deadlines

120 days

Lien must be filed w/in 120 days after last labor or materials furnished.

Enforcement deadlines

6 years

In South Dakota, an action to enforce a mechanics lien must be initiated within 6 years from the claimant's last furnishing labor or materials.

Preliminary notice deadlines

60 days

Mechanics lien deadlines

120 days

Lien must be filed w/in 120 days after last labor or materials furnished.

Enforcement deadlines

6 years

In South Dakota, an action to enforce a mechanics lien must be initiated within 6 years from the claimant's last furnishing labor or materials.

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South Dakota Mechanics Lien FAQs

Contractors, suppliers, property owners, construction lenders, and other vendors will encounter all kinds of lien-related paperwork and questions when working on South Dakota construction jobs. Here are some of the common issues you may encounter, and answers written by construction attorneys and payment experts.

Who can file a South Dakota mechanics lien?

In South Dakota, any party who furnishes labor and/or materials for the improvement or development of property is entitled to lien rights. This generally means general contractors, subcontractors, laborers, and material suppliers. In South Dakota, lien rights also apply to companies that furnish light, power, and/or water to a construction project.

Can an unlicensed contractor file a South Dakota mechanics lien?

South Dakota imposes no additional licensing requirements in order to file a mechanics lien. However, it is never a good idea to perform work for which a license is required if you do not have the required license.

• Learn how to get licensed: South Dakota Contractor License- Guide to Registration & Requirements

When is the deadline to file a South Dakota mechanics lien?

In South Dakota, a mechanics lien must be filed no later than 120 days after the last date labor and/or materials were furnished. However, there is some confusion as to whether this means 120 days from the last work on the project as a whole, or 120 days form the last work by the claimant to fulfill his duties under his contract. To be safe, it may be best practice to file the lien within 120 days from the completion of the claimant’s work on the project, whether or not the project is ongoing.

Calculate your lien deadline

What information should be included in a South Dakota mechanics lien?

A South Dakota Statement of Mechanics Lien is governed by SD Codified Laws §44-9-16, and should contain all of the following information:

• Notice of intention to claim a lien;
• Lien amount;
• Description of labor and/or materials provided;
• Claimant’s information;
• Hiring party’s information;
• First and last dates of furnishing labor and/or materials;
• Property description;
• Owner’s information; &
• Itemized statement of account.

→ Download a free South Dakota Statement of Mechanics Lien here

Does a South Dakota mechanics lien need to include a legal property description?

In South Dakota, a mechanics lien requires a “description of the property to be charged, identifying the same with reasonable certainty.” While this doesn’t seem to rise to the level of requiring a full legal description, the more specific the description of the property, the better.

• Learn more: Legal Property Description Search | A Complete Guide

Can attorney fees, collection costs, or other amounts be included in the lien amount?

Attorney’s fees and collection costs are not allowable in the lien amount itself in South Dakota, but interest and attorney’s fees may be awarded to the prevailing party in an action to enforce the lien. Interest is mandated to be set at the highest legal amount by statute.

Does a South Dakota mechanics lien need to be notarized?

Yes, South Dakota law requires that a mechanics lien must be notarized to be valid and accepted for recording.

• Learn more about notarizing construction payment documents
• Options for notarizing mechanics liens remotely

Where do I file and record a South Dakota mechanics lien?

South Dakota mechanics lien claims are documents recorded with the county register of deeds office. For your mechanics lien to be valid, you must record it in the county where the job is physically located.

South Dakota counties each have their own unique rules and requirements. To help you, we’ve assembled all of the offices in South Dakota that record mechanics liens. These pages will walk you through the county’s specific formatting requirements, deadlines, and fees.

• Be prepared: Essential Questions to Ask The County Recorder Before Filing a Lien

How do I actually file a South Dakota mechanics lien?

There are a lot of questions on this page about who can file a South Dakota mechanics lien, when it must be filed, what types of rules apply, and more. But you may be wondering something much more practical: how do I actually get my mechanics lien recorded and filed?

• For a full breakdown of the process, you may want to consult: How to File a South Dakota Mechanics Lien | A Step-by-Step Guide

Do I need to send notice that the mechanics lien was recorded in South Dakota?

Notice is required, but technically, it is not notice that the lien was recorded. Rather it is notice that the lien will be recorded. South Dakota requires that a copy of the lien must be mailed to the property owner prior to the lien being filed with the Register of Deeds. A post office receipt of mailing must be attached to the lien filed with the register of deeds for proof of mailing to the property owner.

When is the deadline to enforce a South Dakota mechanics lien, or, how long is my lien effective?

In South Dakota, an action to enforce a mechanics lien must be initiated within 6 years from the date of last furnishing labor or materials to the project.

However, if the property owner makes a written demand on the lien claimant to commence the action to enforce the lien, the lien claimant must initiate the action within 30 days from receipt of the written demand – or the lien will be extinguished.

→ Find a South Dakota construction attorney

Can I collect the entire unpaid amount from the property owner if they already paid the general contractor in full in South Dakota?

Yes, California is considered a “full-price” lien state, meaning that the lien claim will secure the full amount unpaid to the lien claimant, regardless if the GC has been paid in full or not.

• For more, see: Full Price vs. Unpaid Balance Lien States

Does a South Dakota lien have priority over pre-existing mortgages or other construction loans?

It depends. In South Dakota, a mechanics lien has priority over all other liens or encumbrances on the property except liens of the United States, South Dakota, or liens that were previously recorded or of which the mechanics lien claimant had actual knowledge.

For priority purposes, a mechanics lien attaches to the property from the first date of visible construction on the property. However, there is a very complicated provision of South Dakota mechanics lien law that provides a mechanism for filing a Notice of Contract with the Register of Deeds which, if filed, may give the mechanics lien priority over a construction lender.

Who cancels the South Dakota mechanics lien if/when I get paid?

South Dakota lien law provides that when a recorded lien is satisfied by payment, foreclosure, compromise, or any other method, the lien claimant must execute and deliver a Satisfaction with Mechanics Lien to the property owner. The satisfaction must be executed before two witnesses and filed with the Register of Deeds.

This requirement is strict; if the lien claimant doesn’t execute and deliver the satisfaction within 10 days from the written demand of the property owner or other interested party, the lien claimant will be liable for damages, attorney’s fees, and an additional penalty of $100.

→ Download a free South Dakota Lien Release form here

People are asking South Dakota construction attorneys:

can a contractor file a lien. It should be note he never sent a preliminary notice

I'm sorry to hear about the trouble you have been having. To tackle the first part of your question as to whether it is required to send a preliminary notice in South Dakota, it depends. On private projects, general contractors are not required to send a preliminary notice. However, if the GC filed a notice of commencement, subcontractors and suppliers must send a preliminary notice on private projects.

If you are dealing with a GC in this case and they weren't required to file a preliminary notice before filing a mechanics lien, this Levelset post in regards to disputing an invalid lien claim will likely be helpful to you.

Good luck!

L

Mechanics liens are generally available to those who have performed work but not been paid for the work they've done. However, if a contractor hasn't fully performed under their contract and finished the job, that contractor generally won't be entitled to full payment. Before looking further, I think this article might provide some value to you: A Mechanics Lien Was Filed on My Property – What Do I Do Now?

Defending against a South Dakota mechanics lien

The fastest and cheapest way to have a lien removed will typically be to have the claimant release their lien themselves. And, an owner may be able to convince the claimant to abandon the lien by threatening to pursue legal action to have the lien removed and to recover damages under a claim like slander of title. Another potential option might be to negotiate a partial payment in exchange for the release. While that might not be easy to stomach, it would likely be cheaper and less stressful than challenging a lien via legal action. Finally, as you mentioned above, challenging the lien claim via legal action is another popular option. And, it's pretty common for owners to take a mechanics lien dispute to court - especially when there are obvious issues with the lien. Your attorney will be able to evaluate the validity of the claim that was filed then advise on how best to combat it.

Lien lapse in South Dakota, for failure to enforce within 30 days?!

I'm sorry to hear about that. First, it's worth noting that a property owner or other payor's first reaction to a lien filing is typically to challenge that lien. We discuss the idea in depth here: My Lien Was Challenged — What Do I Do?. As discussed in the article - a challenge against a lien does not necessarily indicate that there's an issue with the lien filing. That being said, zlien has noted the potential for the South Dakota lien enforcement period to be shortened to 30 days in several areas on its website, including: (1) in the South Dakota Lien and Notice FAQs (under "When is the Deadline to Enforce a South Dakota Mechanics Lien, or, How Long is My Lien Effective?"); and (2) 3 Important Nuances Within South Dakota Mechanics Lien Law. under § 44-9-26 of the South Dakota lien statute, an owner, an owner's agent, or a contractor can shorten the timeframe during which a South Dakota lien is effective by sending a written demand to the lien claimant. However, such a notice will only be effective to shorten the timeframe to lien if the written demand was served on the lien claimant and the party attempting to shorten the timeframe has provided proof that such a notice was sent to the party who held the lien. In the event that the notice was not properly sent to the lien claimant and/or that the party attempting to shorten the timeframe for lien has no proof that the lien holder was properly served, the time to enforce a filed South Dakota mechanics lien will not be shortened. Of course, it might be up to the lien claimant to dispute that the lien period should not be shortened - and that could take some sort of further legal action, such as a motion with the relevant court to dispute the issue. Finally, it's worth noting that while zlien provides a substantial amount of legal information regarding the lien laws across all 50 states, zlien is unable legally advise any user.

Lien ability relating to claims

That's a really good question, and it's one we get fairly often. In South Dakota, as with many other states, the amount of a lien claim shouldn't include amounts such as interest or attorney fees. Rather, the amount of a South Dakota lien is limited to "the price or value" of the work provided. It's worth noting, though, that if the lien came down to an enforcement action (which is rarely the case), interest and attorney fees may be awarded to the prevailing party in a lien enforcement action. Such interest would be set at the highest legal amount allowable by South Dakota statute.

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5 essential things to know about South Dakota mechanics liens

Contractors & suppliers have strong lien rights in South Dakota. If a contractor or supplier isn’t paid on an South Dakota job, they can turn to filing a lien to speed up payment and protect themselves. However, there are specific requirements and rules that must be followed. Here are 5 essential things you need to know about South Dakota’s mechanics lien law.

South Dakota allows most any party to file a mechanics lien

Any party– including general contractors, subcontractors, material suppliers, and laborers– who furnishes labor or materials for the improvement or development of property has South Dakota mechanics lien rights. South Dakota also allows lien rights to parties that furnish light, power, or water to a construction project. Most states require all mechanics lien claims be filed with the county recorder or clerk of court. In South Dakota, however, there are at least 2 offices where mechanics lien claims can be filed, and the lien claimant must make certain they file their lien claim in the right office. Generally speaking, like all other states, mechanics liens in South Dakota must be filed with the county recorder (the Register of Deeds) of the county where the construction project is located. However, the mechanics lien claim must be filed with the Secretary of State (and not the Register of Deeds) if the claim is for materials or services furnished for construction on power, electric, light, telephone or telegraph lines, or on railways.

The deadline to file a South Dakota mechanics lien is un-specific

The deadline to file a mechanics lien in South Dakota is 120 days from last furnishing labor or materials to a project. However, it is unclear whether the 120 day period begins from the last date the claimant furnished to the project, or 120 days from the last furnishing date on the project as a whole by any party. Because of this confusion, it is best practice to file within 120 days of your last date of furnishing to the project. HOWEVER, a Mechanics Lien’s Effectiveness Can Be Drastically Limited. South Dakota has one of the longest mechanics lien claim periods in the United States. After a mechanics lien is filed in the state, it is effective against the property for a total of six years! This is almost as long as standard judgments in many states. However, there is an exception. At any time, a property owner can deliver a written demand to the lien claimant requiring the lien claimant to commence suit to enforce the mechanics lien claim. This demand is referred to as a “Notice to Commence Suit to Enforce Mechanics Lien.” The mechanics lien claimant must start its lawsuit to enforce the lien claim within 30 days of receiving this notice, and if the lawsuit is not commenced, the mechanics lien claim will be rendered null and void.

Only sub-contractors and material suppliers are required to send preliminary notice

General contractor and subcontractors are never required to send a preliminary notice. Sub-subcontractors and material suppliers need to send a Notice of Furnishing Labor or Materials within 60 days of first furnishing labor and materials to the project to the property owner and general contractor if the general contractor filed and posted a Notice of Commencement at the jobsite within 30 days of commencement of the project. If this Notice of Commencement was not filed and posted, there are no preliminary notice requirements for sub-subcontractors and material suppliers.

General contractors may file (and post) a notice of commencement to provide some protection against the liens of sub-subcontractors and suppliers to subs, but this notice is not necessary.

A license is not specifically required by statute

South Dakota does not require a party to be licensed in order to have lien rights and file a claim, although it is never recommended to perform work without a license if a license is required.

An owners demand for lien account may affect the deadline to file

Those owed money on a project in South Dakota must file their mechanics lien within 120 days from last furnishing labor or materials to a project. However, a property owner can delay this process for at least 10 days by service an “Owners Demand for Lien Account” upon any potential lien claimant.

This “Owners Demand” must be within 15 days from the completion of the construction contract. If it is timely made, the lien claimant may not file a mechanics lien for at least 10 days after the lien account is furnished to the property owner.

While this may seem like a small delay or inconvenience, it can turn out to be much more, especially if the property owner were to make the demand for lien account near the end of a claimant’s deadline to file a mechanics lien. Theoretically, if a request was made at this time, the lien claimant could be forced out of its mechanics lien rights because the 10 day waiting period is not cause to extend a mechanics lien deadline.

How to file a Mechanics Lien in South Dakota (DIY)

Read the guide

In our step-by-step guide, we will walk you through each step required to qualify for and file a South Dakota mechanics lien. This guide explains the notices you need to send, the information required on the South Dakota mechanics lien form, and essential tips about delivering it to the county office for recording.

Get the right form

Download a blank South Dakota Mechanics Lien form. Our free forms were created by construction attorneys to meet the requirements in South Dakota mechanics lien laws. The state statutes are very specific about the language and formatting required in a lien claim document. We make it easy to get this part right.

See all construction forms for South Dakota

Fill out the form

Be careful! Accuracy is important.

This part can get tricky, since South Dakota mechanics lien law is very strict about the details and information required. Making a mistake on the lien form could invalidate your claim. All of the information must be 100% accurate, including the legal names of each party, the property description, and the claim amount. Review every detail carefully.

Serve your lien on the owner

Before you actually record a South Dakota lien claim, you need to serve a copy of the lien claim on the property owner by registered or certified mail. You need to include a copy of the lien statement and the post office receipt when you file your claim at the register of deeds in your county.

File your lien with the register of deeds

Find your county office

File your completed form with the register of deed’s office in the South Dakota county where the property is located, and pay the recording fee. View a full list of South Dakota register of deed’s offices to find contact information, fees, and filing requirements.

After you file

Learn the next steps

A South Dakota mechanics lien is valid for 6 years, leaving you with plenty of time to enforce your lien claim.

If you get paid, it’s a good idea to file a lien release form to discharge your lien claim.

South Dakota's Mechanics Lien Statutes

The provisions of the South Dakota statutes that permit the filing of mechanics liens and materialman’s liens on construction projects can be found in South Dakota’s Mechanics’ Lien Law, SDCL § 44-9-1 et. seq. The full text of the South Dakota Construction Lien Law is provided below. Updated as of May 2023.

§ 44-9-1. Persons Entitled to Lien - Property Affected - Extent of Lien - Exceptions

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. Construction of Improvements with Knowledge of Owner Subjects Land to Lien - Exceptions

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 therefor; provided that as against a lessor no lien is given for repairs made by or at the instance of his lessee.

§ 44-9-3. Vendee Authorized to Improve Land Sold Under Executory Contract - Forfeiture or Surrender of Contract after Attachment of Liens for Improvements - Liability 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. Improvement not Authorized by Owner of Land - Notice of Nonliability

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 Right - Lien does not Affect Exemption

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. Contribution Under Contract with Owner - Agreed Price - Extent 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.

§ 44-9-6.1. Interest on Amounts Secured by Liens

The interest payable on amounts secured by mechanics’ or materialmen’s liens shall be at the maximum interest rate allowed in § 54-3-5.1.

§ 44-9-7. Attachment and Taking Effect of Lien - Preference Over Other Encumbrances

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. Attachment of Lien - Protection of Bona Fide, Mortgagee, or Encumbrancer - Notice of Lien for Improvements Thereafter Made

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 44-9-1(2), 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. Concurrent Liens Upon Mine or Mining Claim, Oil or Gas Well or Spring - Pro Rata Payment

All liens, claims for labor performed, or services or materials furnished, as provided in subdivision 44-9-1(3), 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. Materials or Services Furnished to Contractor - Lien Account and Notice of Claim Furnished to Owner - Withholding of Payments from Contractor to Protect Lien Claimants

Any person furnishing any of the items for which a lien may be claimed under the provisions of § 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. Lien Account and Notice of Claim - Service on Owner of Property - Copy Furnished to Contractor - Assent of Contractor to Claim - Payment by Owner - Deduction from Amount Due Contractor

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. Amount Due from Contractor to Creditor - 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 § 44-9-10, or subsequently, according to such contract or under the same.

§ 44-9-13. Misappropriation of Funds by Contractor, Subcontractor, or Supplier - 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 of Owner for Lien Accounts - Service on Persons Claiming Liens - Owner Defined

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. Lien Ceases Without Filing of Required Lien Statement - Place of Filing of Statement

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 therefor 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. Lien Statement by Lien Claimant - Verification - 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. Lien Statement by Lien Claimant - Mailing of Copy to Property Owner Condition Precedent to Filing - Post Office Receipt Attached to 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. Lien Statement by Lien Claimant - Duties of Register of Deeds - Filing in Numerical Order - Contents of Records - Entry Upon Mortgage or Lien Index

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 § 7-9-9.

§ 44-9-19. Fees for the Filing, Indexing, or Assignment of Liens

The register of deeds shall charge a fee in accordance with subdivision 7-9-15(3) for the filing and indexing of any lien or assignment of the lien under the provisions of this chapter. However, no fee may be charged for the satisfaction of the lien.

§ 44-9-20. Claims Against Two or More Buildings or Improvements - Exception for Condominiums - General Contract with Owner - Election of Lien Claimant

Except as in the case of condominiums under the provisions of § 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. Manner of Satisfying Liens - Execution and Delivery of Satisfaction to Owner of Property - Contents - Acknowledgement - Record of Satisfaction - Cancellation 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. Neglect of Lien Holder to Satisfy Lien on Demand - Damages - Attorney Fees - Additional Penalty

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 therefor 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. Enforcement of Lien - Venue of Action - Commencement and Conduct of 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 line 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. Time for Assertion of Lien - Limitation of Action of Enforce - Persons Bound by Judgment

No lien may be enforced in any case unless the holder of the lien asserts the lien, either by complaint or answer, within six years after the date of the last item of the lien holder’s claim as set forth in the filed and entered lien statement. No person is bound by the judgment in the action unless the person is made a party to the action within the six-year period.

If no action or suit has been commenced to enforce the lien during the six-year period, the owner of the property, the owner’s agent, or contractor may file an affidavit with the register of deeds stating that the lien holder has not commenced suit to enforce the lien within the six-year period and requesting that the lien be cancelled. The register of deeds shall cancel the lien of record within thirty days of the filing of the affidavit.

§ 44-9-25. Parties to Action to Foreclose Lien - Admission of Lien Holder Not Named as Defendant - Joinder of Plaintiffs

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. Forfeiture of Lien for Failure to Commence Suit Upon Demand - Cancellation by Register of Deeds

Upon written demand by the owner, the owner’s agent, or contractor, served on any person holding a lien, requiring the person to commence suit to enforce the lien, the person shall commence suit within thirty days after such service or the lien is forfeited. The register of deeds shall cancel the lien of record, if the owner, the owner’s agent, or contractor files no sooner than the fortieth day following service of the written demand:

(1) An affidavit stating that the person holding the lien has not commenced suit to enforce the lien within thirty days after the service of the written demand;

(2) A copy of the written demand that was served on the person holding the lien; and

(3) Proof of service on the person holding the lien.

§ 44-9-27. Action to Enforce Lien - Commencement - Issuance of Summons - Filing of 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 of Action to Enforce Lien - Necessity for Filing - Intervention of Other Lien Claimants

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 § 44-9-25.

§ 44-9-29. Enforcement of Lien - Application to Make All Interested Persons Parties - Order of Court, Publication - Rights Barred by Failure to Appear and Assert Claim

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. Consolidations of Actions for Foreclosure of Liens Upon Same Property - Order of Court - Rights of Parties Protected

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. Pleadings in Actions to Foreclose Lien - Bill of Particulars to Be Attached, Verification - Further Account May Be Required by Court - Pleading Stricken and Claim Disallowed for Failure to File 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 in Action to Foreclose Lien - Denial of Averments of Answer

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

§ 44-9-33. Foreclosure of Liens - Applicability of Laws Governing Civil Procedure - Exception

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. Foreclosure of Liens - Appointment of Receiver on Request of Majority of Lien Holders, Parties to Action

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. Foreclosure of Liens Involving Public Utility - Receivership Created Instead of Directing Sale of Property

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 Appointed in Foreclosure Proceeding - Issuance of Certificates for Charges Necessary to Protect Property as Provided in Judgment

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 may be 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 Fixed by Court

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. General Power of Court to Appoint Receiver not Abridged

Nothing in §§ 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. Postponement of Trial of Foreclosure of Action - Omitted Parties - Lien Claim Not Due - Allowance of Present Worth of Claim

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 for Lien Holder - Amount Demanded and Proved - Costs Fixed by Court - Excluded from Lien of Other Property

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. Foreclosure of Lien - Taxation of Costs - Sum Allowed for Preparation and Filing of Lien Statement and Account

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. Foreclosure of Lien - Allowance of Fees and Expenses, Attorneys, Receivers, Exception

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. Payment of Judgment by Lien Holder Personally Indebted for Amount of Lien - Subrogation to Rights of Person so Paid

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. Judgment of Sale to Satisfy All Liens - Manner of Sale - Rights of Persons Which are Paramount to Liens - Proceeds of Sale, Distribution by Officer Making Sale

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 therefor; 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. Judgment of Sale to Satisfy All Liens - Right of Redemption - Leasehold Having Not More than Two Years to Run - Interest of Vendee Under Executory Contract of Sale

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. Sale of Improvements to Satisfy All Liens - Severance and Removal of Land

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. Judgment and Sale to Satisfy All Liens - Necessity for Report to and Confirmation by Court

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

§ 44-9-48. Judgment and Sale to Satisfy All Liens - Sales not Confirmed by Court - Resale - Receiver to Handle Property

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. Failure to Comply with Chapter does not Affect Right of Person to Recover, in Civil Action, from Party with Whom He Contracted

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.

§ 44-9-50. Notice of Project Commencement - Time of Filing - Fees - Register of Deeds to Maintain Index

Any owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner, may file with the register of deeds of the county in which the improved premises are situated a notice of project commencement. The notice of project commencement shall contain the following information:

(1) The name and address of the person filing the notice of project commencement;

(2) The name and address of the owner or developer;

(3) A general description of the improvement; and

(4) The location of the project, including the legal description of the property.

The notice shall be filed within thirty days of the commencement of work and shall be accompanied by a filing fee as provided in subdivision 7-9-15(3). The register of deeds in each county shall maintain an index of all notices of project commencements.

§ 44-9-51. Contractor's Name and Address and Location and Notice to be Posted - Contents of Location Notice

Any person filing a notice of project commencement shall post the name and address of the contractor and location notice at the job site. The location notice shall contain the following statement: The contractor on this project has filed a notice of project commencement at the county courthouse. Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 before filing liens in connection with this project.

§ 44-9-52. Notice of Project Commencement does not Affect Title, Liens Allowable, or Mortgage

The filing of a notice of project commencement does not constitute a cloud, lien, or encumbrance upon, or defect to, the title of the real property described in the notice, nor does it alter the aggregate amounts of liens allowable by applicable statute, nor does it affect the priority of any mortgage or future advances under any mortgage.

§ 44-9-53. Notice of Furnishing of Labor or Materials Required Before Lien Extended - Notice Recipients - Time for Filing - Contents of Notice - Exemption

If the provisions of §§ 44-9-50 and 44-9-51 are first invoked, no sub-subcontractor or supplier to subcontractors is entitled to extend, pursuant to § 44-9-15, a lien created pursuant to subdivision 44-9-1(1), unless the sub-subcontractor or supplier has first provided notice of furnishing labor or materials by certified or registered mail to the contractor identified in the notice of project commencement and has provided a copy of the notice to the owner of record. Notice pursuant to this section shall be made not later than sixty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery, and the post office receipt for mailing such notice shall be attached to the lien and filed in the office of register of deeds. Such notice of furnishing labor or materials shall include:

(1) The name of the sub-subcontractor or supplier who claims payment;

(2) The name of the person with whom the claimant contracted or by whom the claimant was employed;

(3) A description of the labor, services, or materials furnished and the contract price or value thereof. Materials specifically fabricated by a person other than the one giving notice and contract price or value thereof shall be separately stated in the notice;

(4) A description of the project, sufficient for identification;

(5) The date when the first and last item of labor or materials was actually furnished or scheduled to be furnished; and

(6) The amount claimed to be due, if any.

Any person who gives notice in accordance with this section may extend a lien as provided in § 44-9-15.

This section does not apply to claims of individual laborers when the amount of their lien is less than two thousand dollars.

§ 44-9A-1. Liens Subject to Waiver Under Chapter

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. Joint Check and Separate Agreement of Waiver Required

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. Provisions to be Entered on Reverse of Joint Check for Waiver

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 services supplied under a clearly identified contract to the extent of and of the date of the joint check.

§ 44-9A-4. Endorsement of Joint Check and Execution of Agreement as Express Waiver

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 Joint Check Proceeds at Peril of Supplier

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.

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