How to Evict a Tenant (Process)
The process of evicting a tenant in South Dakota starts with the landlord identifying a valid reason to terminate the tenancy. More often than not, the tenancy will be terminated due to the non-payment of rent or for violations of the lease provisions. The landlord may need to notify the tenant of the eviction before terminating the lease in order to provide adequate time for the individual to vacate the property. If the tenant does not vacate after proper notice has been given, the landlord may commence the legal proceedings by filing a Forcible Entry and Detainer action with the circuit court.
Step 1 – Terminate the Lease or Rental Contract
Landlords must begin by determining the reason the lease or rental contract should be terminated and whether the circumstance will require a written eviction notice to be served on the tenant. The following list outlines the various eviction scenarios:
Non-Payment of Rent – A tenant that fails to pay rent for three (3) days after it is due may be evicted. The landlord must serve the tenant with a 3-Day Notice to Pay or Quit which provides them with an additional three (3) days to either pay the rent (if the landlord chooses to accept it) or vacate the property.
Non-Compliance – A tenant may be evicted for committing waste upon the rented property (i.e., voluntary damage) or when the tenant violates a lease provision for which the consequence is termination of the lease. The landlord is not required to provide the tenant with a written eviction notice. However, if the landlord wishes to notify the tenant of the impending lease termination, and provide them with the opportunity to cure the non-compliance, they should serve the individual with a Notice to Comply or Quit.
Holding Over After Termination of Lease or Expiration of Term – If a tenant fails to vacate the property after the lease expires or after the landlord rightfully terminates the lease, the landlord must serve the individual with a 3-Day Notice to Quit. The notice provides the tenant with three (3) days in which they must vacate the rented premises.
Lease Termination (Month-to-Month Tenancy) – The landlord can terminate a month-to-month tenancy without cause by serving the individual with a 1-Month Notice to Quit. The tenant will have a period of one (1) month in which they must vacate.
Step 2 – Deliver the Written Notice
The landlord must employ the services of a process server or the sheriff’s department to have a copy of the notice served on the tenant. The server must attempt to deliver the notice to the tenant personally. If the initial service attempt is unsuccessful, the server must wait six (6) hours before making a second (2nd) attempt at personal delivery.
If personal service is not possible on the second (2nd) attempt, the server must affix the notice to a conspicuous location on the property and send an additional copy to the address by first-class mail. The server should also provide a copy to another resident of the dwelling (if possible). The notice period will commence on the date following service. Weekends and legal holidays shall not be included in the notice period.
Step 3 – File and Serve the Summons and Complaint
The tenant must adhere to the notice requirements within the designated timeframe. If the tenant fails to comply, the landlord can file a Summons and Complaint with the district court that has jurisdiction over the property (both the Summons and Complaint can be obtained from a clerk of the court). The Summons and Complaint forms must then be served to the tenant using the same methods as described in the previous step. The landlord must pay all filing and service of process fees.
Step 4 – File the Answer
After the Summons and Complaint have been served, the tenant will have four (4) days to file an Answer form with the court. The Answer will provide the tenant with the opportunity to contest the eviction. After the Answer has been filed, an eviction trial will be scheduled allowing both the landlord and tenant to present their cases before a judge (or a jury if requested by either party). However, if the tenant fails to file the Answer on time, the landlord will win the case by default.
Step 5 – Court Date
Both parties must ensure to bring their evidence with them to court on the date of the trial. The judge or jury will review the cases before issuing a verdict. If the landlord is granted the eviction, the court will demand that the tenant vacate the premises within a specified number of days. The court may also order the tenant to pay the total rent due (if not paid at the time of the trial) along with court costs and attorney fees.
Step 6 – Evict the Tenant
Should the tenant remain on the premises past the prescribed date, the landlord must obtain an Execution for Possession from the court and bring it to the sheriff’s department. The Execution for Possession will provide the sheriff’s department with authority to remove the tenant from the rented premises. Any belongings left on the premises by the tenant must be dealt with by the landlord per county procedure.