South Dakota Notice of Commencement
FAQs & Guide

No, there is no specific requirement to file a South Dakota Notice of Commencement.

In South Dakota, a Notice of Commencement is a voluntary filing, so no party is obligated to get an NOC filed. However, there are potential benefits to filing an NOC, and in South Dakota, “[a]ny owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner” is allowed to file a Notice of Commencement.

Choosing to file an NOC results in sub-subcontractors or suppliers to subcontractors being unable to file a statement of claim unless they first timely provide a notice of furnishing to the GC and the owner.

No. Unlike some other states in which a Notice of Commencement may be filed by the GC, South Dakota imposes no obligation to provide a copy of the notice to the property owner.

The notice may be filed by the property owner, the agent or representative of the owner, or the GC, and no delivery of the notice to any particular party is required. However, along with being filed in the county property records of the county in which the project is to take place, certain information must also by posted on the job site itself, which, presumably, would provide notice of the NOC’s filing to the property owner and other interested parties.

As noted above, no party “must” file a Notice of Commencement, but there may be benefits to doing so. If the decision is made to file a Notice of Commencement it may be filed by “[a]ny owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner.”

It is interesting to note that the language “duly authorized agent or representative” provides the opportunity to file an NOC to any party given the authority to make the filing by the owner. This may be used by a construction lender or other top of the chain interested party in an attempt to limit lien rights, or at least require sub-sub tier participants to provide a notice of furnishing.

South Dakota has strict deadlines for filing a Notice of Commencement despite the fact that the filing is voluntary.

If a Notice of Commencement is to be filed, the notice must be filed “within thirty days of the commencement of work.” Additionally, according to statute, there must also be certain information posted at the job site. The statute does not specify when the “location notice” must be posted on the job site, however. While it would likely be best practice to post the “location notice” at the job site commensurately with the recording of the Notice of Commencement with the register of deeds, it may be possible to post the job site notice at a slightly later date without invalidating a properly filed NOC.

If the 30-day deadline for filing the document is missed, however, the sub-tier notice requirements that would otherwise be imposed do not apply.

South Dakota law requires that, when applicable, a South Dakota notice of project commencement must be filed “with the register of deeds of the county in which the improved premises are situated” and that the name and address of the contractor along with a “location notice” including specific wording must be  posted at the job site.

Accordingly, this means that (at least) two distinct steps must be undertaken:

1. Getting it Filed

South Dakota requires that the notice be filed with the register of deeds. A handy list of the recording offices for each South Dakota county, with contact information, can be found here.

Alternatively, you can also file your South Dakota Notice of Commencement electronically here.

2.  Post on Job Site

The second part of the requirement is that information must be posted at the job site. The “name and address of the contractor” and a “location notice” must be posted. The location notice must include the following statement verbatim: “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 [requirement to provide a notice of furnishing] before filing liens in connection with this project.”

In South Dakota, a Notice of Commencement must include 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.

Additionally, the “name and address” of the contractor must be posted at the job site, along with a “location notice” including the following specific language: “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.”

The filing of a Notice of Commencement does not have any effect on a GC’s lien rights. However, it may have an impact on limiting lien exposure or liability.

If a notice of commencement is filed, the failure of a sub-subcontractor or supplier to a subcontractor to send a notice of furnishing will disallow those remote claimants from filing a lien statement of claim.

It is interesting to note that the specific statutory language differs a bit between statutory sections with respect to the lien limitation. In § 44-9-51 it is specified that: “Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 before filing liens” and in § 44-9-53 it is stated that: “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.”

South Dakota provides a lien to any party who furnishes labor and/or materials for the improvement or development of property, but requires the filing of a lien statement to keep the lien from extinguishing 120 days from the date labor or materials were last furnished. It is unclear from the above quoted statutes whether a sub-subcontractor or supplier to a subcontractor would be entitled to initiate a lawsuit against the property owner for enforcement of his lien within the 120-day time period in which a statement of claim must be filed, but prior to filing a statement of claim of lien, if a notice of commencement was filed and the claimant failed to provide a notice of furnishing.

No. Unlike some other states with strict time limits for the effective period of a Notice of Commencement, there is no specific effective period set forth by South Dakota law for a notice of commencement in that state.

No. There is no specific provision that requires a South Dakota Notice of Commencement to be notarized. However, some counties implement interesting filing requirements, and may request that a Notice of Commencement document by notarized in order to be filed.

No, there is no requirement in South Dakota mandating that a notice of commencement to be terminated or released. The release or termination of a Notice of Commencement is not a document contemplated or set forth by South Dakota statutes.

However, as an NOC is a recorded document, a purported “release or cancellation” of a previously filed NOC may be a document that could potentially also be filed, but there is no specific effect that such a filing would have on the project.

No.

In South Dakota, a Notice of Commencement may only be filed by the property owner, the property owner’s agent or authorized representative, or the GC. As the filing of a Notice of Commencement can limit the effectiveness of a sub-tiered party’s mechanics lien or bond claim rights, and creates specific notice requirements, it does not make sense for any sub-tier party to file a Notice of Commencement.

Yes, kind of.

South Dakota statute states that: “If the provisions of §§ 44-9-50 and 44-9-51 [Notice of Commencement] 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.”

South Dakota does not normally require a preliminary notice to be sent on a project in order to retain lien rights. However, if an NOC is filed, in order to be allowed to file a statement of lien claim, sub-subcontractors and suppliers to subcontractors must send a notice of furnishing within sixty days after last furnishing labor or materials to the project.

When the notice of furnishing is required, it must be sent via certified or registered mail to the GC, and also provided to the property owner.

Kind of.

As noted above, if an NOC is filed, in order to be allowed to file a statement of lien claim to extend their lien, sub-subcontractors and suppliers to subcontractors must send a notice of furnishing within sixty days after last furnishing labor or materials to the project.

However, also as noted above, there is some conflict in the wording of the statutes, and it is unclear whether a sub-subcontractor or supplier to a subcontractor would be entitled to initiate a lawsuit against the property owner for enforcement of his lien within the 120-day time period in which a statement of claim must be filed, but prior to filing a statement of claim of lien, if a notice of commencement was filed and the claimant failed to provide a notice of furnishing.

No. The South Dakota Notice of Commencement is specifically related to private works of improvement, and is not a contemplated filing for public works of improvement.