By J. Vincent Jones / Woods, Fuller, Shultz & Smith P.C.
In the business of being a landlord or property manager, it sometimes becomes necessary to evict a tenant. Usually, the problem is related to the tenant’s failure to pay rent. Sometimes the reasons are related to damage, disruption to other tenants, or other violations of the lease agreement.
South Dakota’s eviction statutes (referred to as “Forcible Entry and Detainer”) are located in SDCL Chapter 21-16. The first step in most residential evictions is to serve a three-day notice to quit and vacate. The notice to quit and vacate may be served and returned like a summons, but the statutes allow for posting at the premises. Posting at the premises may occur after the second service attempt, at least six hours after the previous service attempt. The notice to quit must be posted in a conspicuous place and also delivered to the person there residing, if such person can be found. Finally, if serving by posting, the notice must also be sent by first class mail addressed to the tenant at the place where the property is situated. The notice to quit and vacate should state the reasons for the eviction.After a notice to quit has been properly served and the three days have elapsed, the plaintiff may serve the defendant with a summons and complaint. In South Dakota, when calculating the three days following service of the notice to quit and vacate, intervening weekends and holidays should not be included in the calculation. The complaint for eviction should state, at a minimum, the fact of an enforceable lease between the plaintiff and defendant, all the grounds for eviction, and how the defendant has breached the lease contract. The complaint may include a copy of the lease agreement.
In an eviction suit, the defendant has four days to answer the complaint. The plaintiff may not include intervening weekends and holidays when calculating the time elapsed following service. If the defendant fails to answer the complaint within the time required, the plaintiff may move for a default judgment following expiration of four days from the service of summons and complaint.
If the defendant answers the complaint within the time required, a trial may be brought on as little as two days’ notice. Practically speaking, many courthouses are not able to schedule eviction hearings with that degree of speed. The trial may be by court (judge) or by jury.
Whether a judgment of eviction is obtained by default judgment or at trial, it is important to include in the proposed order the precise time and date that the tenant must vacate the premises, and if he or she fails to do so, it should direct the sheriff to remove the defendant.
Once the judgment of eviction is obtained, the plaintiff should obtain a certified copy of the judgment and take it to the sheriff’s office to schedule what is commonly called a “lock out.” During a lock out, if the tenant has not vacated the premises, the sheriff will execute on the judgment and remove the tenant from the premises. Many times the landlord will change the locks before the sheriff has left the premises.
It is important to remember that each eviction can be different. Many times, tenants will raise counterclaims that must be dealt with in a factually specific manner at trial. It is a good idea to contact an attorney to assist you through the process of any eviction.
NOTICE: This article is intended to provide only general information. It does not represent a legal opinion or advice regarding any particular case or issue. Transmission of the information is not intended to create, and receipt of the information does not constitute, an attorney-client relationship. For legal advice on a specific matter, please seek counsel.