December 18, 2018

Landlord-Tenant Rights and Responsibilities

Note: This information restates South Dakota Landlord/Tenant law. Each legal problem depends on the unique facts of that case. The explanations of the law in this pamphlet are not meant as advice on your legal problem. If you have a landlord/tenant problem you cannot solve, see an attorney.

Introduction

Anyone who rents a house, apartment, or mobile home is a tenant. Renting, also called leasing, is an arrangement by which a landlord gives a tenant temporary possession and use of property for rent, and the tenant agrees to pay rent and to return the property to the landlord at a future time. If a person rents a sleeping, motel or hotel room for four (4) weeks in a row or more, you are a “tenant” under law.

The law stated in this pamphlet applies to public housing (such as Lakota Homes, Section 8 and HUD housing) landlord/tenant relationships, as well as private ones. Public Housing tenants also need to look to their lease, as they have added rights and duties under federal law and rules.

What about discrimination by a landlord?

Persons leasing a dwelling should also be aware that Federal law prohibits, with few exceptions, a landlord from discriminating against any person in the rental of a dwelling, or the terms, conditions, or services of the rental, on the basis of race, color, religion, sex, or national origin of the tenant. There are also added legal rights for disabled tenants. If you believe you have been discriminated against, see an attorney or contact the Federal Department of Housing and Urban Development (HUD).

The Lease

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What is a written lease?

Written leases usually state the most important terms of a rental agreement, including the length of the rental period the amount of rent, and the notice necessary to end the lease. Tenants need to read each word of any paper he/she signs. Make sure it states the terms of the lease to which the tenant and landlord agreed. The tenant needs to decide if he/she is willing to rent the unit under the lease’s terms. If the tenant has questions, they need to ask the landlord or see an attorney. If the tenant does not like the answers or does not like the lease, he/she can refuse to rent the unit or get the landlord to change or add to the lease before it is signed. Any changes or additions to the lease must be made before it is signed. Any changes in the terms of the lease must be initialed by both the landlord and the tenant to be effective. The tenant should be sure to keep a copy of the lease in a safe place, where it can be found when needed.

How do oral (unwritten) leases work?

Sometimes, there is no written lease. Then the rental period runs for the period of time for which rent is paid. If no rental period is stated in a written lease, this also applies. For example, if rent is paid once a month, then the lease is on a “month-to-month” basis. This means that the tenant must give the landlord one months notice prior to moving out, and the landlord must give the tenant one months notice in order to end the lease and have the tenant move.

How can a landlord change the lease?

The landlord can raise the rent or change other conditions of an oral or written lease, but only if the landlord gives written notice of the change, to the tenant, thirty (30) days before the change occurs. This notice must be given at the time the rent is due. The tenant may refuse to agree with the change of the lease and move from the rental unit before the change takes effect. To do so the tenant must give notice that he/she is moving, to the landlord within fifteen (15) days of the landlord’s written notice of the change in the lease.

Remember: If you do not understand the terms of a lease, written or oral, be sure to ask questions and if needed get legal advice from an attorney.

Can the landlord enter the rental unit?

Generally, the landlord may lawfully enter the rental unit without giving notice to the tenant in the event of an emergency. The landlord has the right to make an inspection of the rental unit at a reasonable time, but only after reasonable notice is given to the tenant. “Reasonable notice” is generally considered to be 24 hours in advance of entry into the rental.

Repairs

A landlord must keep the rental unit in reasonable repair and fit for humans to live in (except for damage caused by the tenant’s fault). Reasonable repair includes keeping all electrical, plumbing, and heating systems in good and safe working order. This duty cannot be ended or changed by the landlord or tenant. However, the landlord and tenant can agree to let the tenant make certain repairs instead of paying some or all of the rent.

What can a tenant do if no repairs are made?

If a landlord fails or refuses to make needed repairs, the tenant must give written notice, to the landlord, of the specific repairs that are needed and then wait a reasonable time for the repairs to be made. The tenant then can act only if the landlord fails to make the repairs. If a tenant does not have heat, water, or electrical power, an emergency situation exists and the tenant should demand immediate action from the landlord. The tenant needs to keep a copy of any written notice given or mailed to the landlord.

Once the written notice has been given and a reasonable time passes, if the landlord has not made the repairs, the tenant can do one of two things:

  1. The tenant may immediately vacate the rental unit. After leaving, the tenant will not have to obey any terms of the lease; or
  2. The tenant may make the needed repairs, in which case the tenant may subtract the cost of the needed repairs from the rent. If the cost of needed repairs is more than one month’s rent, the tenant must put the rent in a bank account opened only for the purpose of depositing the withheld rent. The tenant must give the landlord written proof of the rent money deposits into the account. The bank account is to be kept until either, the landlord makes the repairs (the rent is then given to the landlord), or enough rent is in the account for the tenant to make the repairs. Then, the tenant uses the money for the repairs and gives copies of the receipts for the work, and any remaining rent money, to the landlord.

What if the tenant causes damage?

In addition to the tenant’s duty to pay rent, he/she is required to keep the rental unit in good condition. The tenant also is required to repair all damages to the rental unit caused by the tenant, his/her family members or invited guests. A tenant is not responsible for ordinary “wear and tear” to the rental unit.

Lockouts and Landlord utility shut-offs.

A landlord may seek an eviction order from a court (see eviction below), but a landlord cannot take matters into his/her own hands and lock a tenant out. If a landlord, without a court order, locks a tenant out of the rental unit or cuts off electricity, gas, water, or other essential services to the rental unit, the tenant has the right to sue the landlord for:

  1. Return of the rental unit to the tenant, and /or reconnection of any cut off utilities; and
  2. Three times the amount of the tenant’s actual damages; and
  3. An amount equal to two months rent, plus advance rent paid and the amount of any security or damage deposit paid by the tenant.

A landlord also does not have the right to unlawfully keep or withhold personal property of the tenant unless it is abandoned (see below).

Evictions

Why can a tenant be evicted?

A landlord can bring an eviction (“unlawful entry and detainer action”) in Court Order if;

  1. The tenant is not in lawful possession of the landlord’s rental unit (for example, the tenant remains in the rental unit after the time states in the lease or the tenant fails to pay rent for more than three (3) days after it is due); or
  2. The tenant greatly damages the rental unit; or
  3. The tenant does something which the lease states can not be done and that the tenant will be evicted if he/she does it (for example, tenant has pets in the rental unit and the lease says the tenant can be evicted if he/she has pets); or
  4. The tenant fails to do something which the lease states must be done or the tenant will be evicted (for example, the tenant agrees, in the lease, to make certain repairs on the rental unit instead of paying rent and then does not make the repairs); or
  5. The tenant fails to move after a thirty-day notice, from the landlord, to move, even if the tenant has not violated any terms of the lease.

Note: Tenants in Public Housing (HUD, Section 8, Lakota Homes, etc.) cannot be evicted only because they did not move after a 30-day notice.

How does an eviction work?

Under South Dakota law, these are the steps the landlord must take to remove a tenant, if the tenant will not move out voluntarily, from the rental unit:

  1. In most cases, the landlord must personally serve the tenant, or have the tenant personally served with a written Three-Day Notice; the notice tells the tenant that he/she has three days to leave the rental unit or a legal action will be begun to force the tenant out. The three days are three business days and do not include Saturdays, Sundays, or legal holidays;
  2. If the tenant remains in the rental unit after the three days the landlord must have a Summons and Complaint personally served on the tenant. A Summons and Complaint are legal papers, which begin legal action in Court. A tenant does not have to move at this time if he/she has a legal reason to fight the eviction; if so, the tenant should see an attorney immediately since he/she has only four business days to answer the Summons and Complaint of the landlord by serving and filing a document – an Answer- in court.
  3. If the tenant does not answer within four days of receiving the Summons and Complaint, the landlord can get a Court Order, which orders the County Sheriff to move the tenant out of the rental unit.
  4. If the tenant obtains an attorney and Answers, claiming that he/she has a right to stay in the rental unit, a trial will be held in Court. The judge or jury will then listen to both the landlord’s side and the tenant’s side and decide if the tenant should be evicted or if he/she can remain.

If the tenant moves out before a trial, the eviction action will probably end, but the landlord can continue the action for any rent and/or damages caused by the tenant to the rental unit, as well as damages caused by the tenant’s failure to move before.

If the landlord wins the eviction at the trial, the Court will Order the tenant to leave the rental unit and to pay any rent due. The tenant may also be ordered to pay the landlord’s attorney’s fees, limited to $500 by law, and costs of the court action (filing and service fee, etc.) In some cases, the landlord can recover double rent for the time the tenant remained in the rental unit after the end of the three-day notice to vacate time period.

If the tenant wins the eviction action, he/she will be allowed to remain living in the rental unit for the length of the rental agreement. This would not prevent the landlord from giving the tenant a months notice to move, if the lease is month-to-month and not a subsidized housing lease. Even if the tenant wins, he/she will still have to pay rent.

Retaliatory Evictions

A retaliatory eviction is when a landlord greatly increases the rent, or decreases or disconnects utilities, or demands that the tenant move simply because the tenant has done any of the following:

  1. The tenant complained to a government agency, such as a County Housing Authority or City Housing Authority or City building Inspector’s Office, regarding housing or building code violations that affect the health and safety of the rental unit.       The complaint must be in “good faith” (made honestly); or
  2. The tenant gave the landlord written notice of repairs that are needed on the rental unit. (See repairs section); or
  3. The tenant started or joined a tenants’ rights group or a “tenant’s union”.

The following are not considered a retaliatory eviction under the law: If the landlord gives the tenant a notice to move 180 days (6 months) or move after the tenant does one of the above (1-3), or the landlord does not renew a written lease when it ends.

If the landlord does violate the retaliation law, the tenant has the right to sue the landlord for damages as if the tenant had been locked out by the landlord, plus use for up to $500 in fees for the tenant’s attorney fees.

Remember: To fight an eviction, a tenant needs to contact an attorney as soon as they are served with a Three Day Notice or a Summons & Complaint.

Deposits

How can a tenant prevent deposit hassles?

Most landlords require a security deposit (also called damage deposit, rent deposit, etc.) to be paid by a tenant at the beginning of the lease. Before moving in, the tenant should inspect the rental unit with the landlord and write out a list of any damages, whether large or small, that have already been done to the rental unit (such as spots on the carpet, broken windows, marks on the walls, stove heating coils not working, etc.) Both the landlord and tenant should sign this paper and each should keep a copy. This will protect both parties from later misunderstandings about what damage the tenant caused.

If the landlord is unwilling to make the move-in inspection, the tenant should make one anyway and mail a copy of the damage list to the landlord. The best way to mail is by a Certified Letter with Return Receipt. By keeping the return receipt card and copy of the letter, the tenant can prove, if he/she needs to, that the landlord knew of the old damages to the rental unit when the tenant moved in. At the very least, a tenant should make a move-in damage list, date it and keep it with the lease.

A landlord cannot require a security deposit in excess of one months rent unless “special conditions” exist which pose a danger to the condition of the premises. This may include a large or many pets or other things which may likely cause damage, by the tenant, to the rental unit.

How can a tenant get the security deposit back?

When a tenant moves out, the landlord must return the deposit or send a written statement, to the tenant, showing the specific reason(s) for not returning the deposit. The refund or statement must be sent within two (2) weeks after the tenant has moved out and the landlord has received the tenant’s mailing address or delivery instructions. The landlord may keep from the deposit only such money as is necessary to either cover the unpaid rent or to return the rental unit to the way it was at the start of the tenant’s leasing of the rental unit. Costs to repair “ordinary wear and tear” cannot be included in the money the landlord may keep. The tenant may also demand a listing of how the deposit money was spent by the landlord. This must be given to the tenant within forty-five (45) days after the tenant moves out.

Every time a tenant moves, he/she should write a letter to the landlord notifying the landlord of the tenant’s new address and demanding the return of the deposit. The letter should also ask for a listing of how any of the deposit money kept by the landlord was used. This letter should be sent by Certified Mail with Return Receipt, the tenant keeping a copy of the letter and return receipt card.

If a landlord keeps all or part of the deposit without good reason or fails to send the tenant the proper notices, the landlord can be sued in Small Claims Court for the deposit’s return. Two Hundred dollars in punitive damages can also be awarded to the tenant if the landlord, in bad faith, fails to return all or part of the deposit, or if the landlord does not provide the tenant with the 2-week statement or 45-day itemized listing, as required by law. “Bad faith” means the landlord knew or should have known the laws on notice, but still failed to give the tenant proper notice, or knew he/she had no right to some or all of the deposit, but did not return it.

What happens to property left on the rental premises

The landlord must handle property left on the rental premises, by a tenant who has moved, as follows: Property having a total reasonable value of less that $100 is, under law, abandoned by the tenant after ten (10) days of the tenant’s move from the rental unit. The property may then be disposed of by the landlord according to abandoned property laws. Property with a total reasonable value of over $100 must be stored by the landlord for thirty (30) days after the tenant moves. If the tenant does not claim the property during the thirty days, the landlord may treat the property as abandoned and dispose of it according to law. If the property is claimed by the tenant during the thirty days, the landlord can make the tenant pay reasonable handling and storage costs.