South Dakota Codified Laws

South Dakota Legislature

South Dakota Codified Laws

43-4 TRANSFER OF PROPERTY

CHAPTER 43-4

TRANSFER OF PROPERTY

43-4-1      Transfer of property defined.
43-4-2      Property subject to transfer--Rights of trustee, conservator, or personal representative.
43-4-3      Property not subject to transfer.
43-4-4      Voluntary transfer of property defined.
43-4-5      Transfer without writing where not required by statute.
43-4-6      Transfer in writing a grant.
43-4-7      Grant takes effect upon delivery by grantor--Presumption as to delivery.
43-4-8      Absolute delivery of grant required--Conditional delivery ineffective.
43-4-9      Constructive delivery of grant--Agreement of parties.
43-4-10      Constructive delivery of grant to stranger for benefit of grantee.
43-4-11      Escrow delivery of grant.
43-4-12      Redelivery of grant does not transfer title.
43-4-13      Grant interpreted as contract.
43-4-14      Construction of grant--Limitations--Operative words.
43-4-15      Irreconcilable parts of grant--Prevailing part.
43-4-16      Grantee favored in interpretation of grant--Exception.
43-4-17      Title transferred--Intention of parties.
43-4-18      Incidents included with thing transferred.
43-4-19      Transfer of present interest and benefit of condition or covenant.
43-4-20      Definition of terms.
43-4-21      Imposition and amount of real estate transfer fee.
43-4-22      Exemptions from real estate transfer fee.
43-4-23      Exempt transfers to be marked.
43-4-24      Collection of real estate transfer fee by register--Amount indicated on face of deed.
43-4-25      Disposition of proceeds of real estate transfer fee collections--Records of register.
43-4-26      Falsification of value of real estate or false claim of exemption as misdemeanor.
43-4-27      Satisfaction of bequest, devise, or transfer in trust by distribution of assets in kind at values determined for federal estate tax purposes--Appreciation or depreciation in value considered.
43-4-28      Effective date of application of provisions as to distributions at values determined for federal estate tax purposes.
43-4-29 to 43-4-36.      Repealed.
43-4-37      Definition of terms for required disclosures in certain real estate transfers.
43-4-38      Buyer furnished completed disclosure statement prior to written offer--Amendment.
43-4-39      Terminating written offer made prior to disclosure statement.
43-4-40      Liability for defect disclosed in statement.
43-4-41      Good faith disclosure required.
43-4-42      Liability for failure to comply with disclosure statement requirements.
43-4-43      Application of disclosure statement requirements.
43-4-44      Property condition disclosure statement.
43-4-45      Repealed.
43-4-46      Transfer defined.

43-4-47      Private transfer fee defined.
43-4-48      Private transfer fee obligation defined.
43-4-49      Private transfer fee obligations after June 30, 2011 unenforceable-- Private transfer fee obligations before June 30, 2011 not presumed valid and enforceable.
43-4-50      Liability for private transfer fee obligations recorded or entered into after June 30, 2011.
43-4-51      Disclosure of private transfer fee obligations.
43-4-52      Notices of private transfer fee obligation to be recorded for obligations imposed before July 1, 2011--Contents.
43-4-53      Amendment to notice of transfer fee.
43-4-54      Effect of failure to record notice of private transfer fee obligation.
43-4-55      Effect of failure to provide written statement of private transfer fee payable within thirty days of request.
43-4-56      Affidavit concerning request for and failure to provide written statement of transfer fee--Recording--Contents.
43-4-57      Recorded affidavit constitutes prima facie evidence of stated facts.

43-4-1 Transfer of property defined.

43-4-1. Transfer of property defined. Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.

Source: CivC 1877, § 599; CL 1887, § 3222; RCivC 1903, § 915; RC 1919, § 517; SDC 1939, § 51.1301.

43-4-2 Property subject to transfer--Rights of trustee, conservator, or personal representative.

43-4-2. Property subject to transfer--Rights of trustee, conservator, or personal representative. Property of any kind may be transferred to a person, estate, trust, conservatorship, personal representative of an estate, conservator of an estate, or trustee, except as otherwise provided by this chapter.

In those cases where a trustee, conservator, or personal representative of an estate holds title to property, he holds it in a fiduciary capacity for the purposes of administration. In those cases where the trust, conservatorship, or estate itself is the grantee or transferee, the trustee, conservator, or personal representative thereof shall have the same rights, powers, duties, and liabilities with respect to the property so transferred as if the deed or other instrument of transfer had named the trustee, conservator, or personal representative as grantee or transferee.

Source: CivC 1877, § 601; CL 1887, § 3224; RCivC 1903, § 917; RC 1919, § 519; SDC 1939, § 51.1301; SL 1991, ch 363, § 1; SL 1992, ch 308; SL 1993, ch 213, § 232.

43-4-3 Property not subject to transfer.

43-4-3. Property not subject to transfer. A mere possibility, not coupled with an interest, cannot be transferred.

A mere right of reentry, or of repossession for breach of a condition subsequent, cannot be transferred to anyone except the owner of the property affected thereby.

Source: CivC 1877, §§ 602, 603; CL 1887, §§ 3225, 3226; RCivC 1903, §§ 918, 919; RC 1919, §§ 520, 521; SDC 1939, § 51.1301.

43-4-4 Voluntary transfer of property defined.

43-4-4. Voluntary transfer of property defined. A voluntary transfer is an executed contract, subject to all rules of law concerning contracts in general, except that a consideration is not necessary to its validity.

Source: CivC 1877, § 600; CL 1887, § 3223; RCivC 1903, § 916; RC 1919, § 518; SDC 1939, § 51.1302.

43-4-5 Transfer without writing where not required by statute.

43-4-5. Transfer without writing where not required by statute. A transfer may be made without writing in every case in which a writing is not expressly required by statute.

Source: CivC 1877, § 604; CL 1887, § 3227; RCivC 1903, § 920; RC 1919, § 522; SDC 1939, § 51.1303.

43-4-6 Transfer in writing a grant.

43-4-6. Transfer in writing a grant. A transfer in writing is called a grant, or conveyance, or bill of sale. The term "grant" in this title includes all these instruments, unless it is specially applied to real property.

Source: CivC 1877, § 605; CL 1887, § 3228; RCivC 1903, § 921; RC 1919, § 523; SDC 1939, § 51.1303.

43-4-7 Grant takes effect upon delivery by grantor--Presumption as to delivery.

43-4-7. Grant takes effect upon delivery by grantor--Presumption as to delivery. A grant takes effect so as to vest the interest intended to be transferred only upon its delivery by the grantor.

A grant duly executed is presumed to have been delivered at its date.

Source: CivC 1877, §§ 606, 607; CL 1887, §§ 3229, 3230; RCivC 1903, §§ 922, 923; RC 1919, §§ 524, 525; SDC 1939, § 51.1304.

43-4-8 Absolute delivery of grant required--Conditional delivery ineffective.

43-4-8. Absolute delivery of grant required--Conditional delivery ineffective. A grant cannot be delivered to the grantee conditionally. Delivery to him or to his agent as such is necessarily absolute; and the instrument takes effect thereupon discharged of any condition on which the delivery was made.

Source: CivC 1877, § 608; CL 1887, § 3231; RCivC 1903, § 924; RC 1919, § 526; SDC 1939, § 51.1305.

43-4-9 Constructive delivery of grant--Agreement of parties.

43-4-9. Constructive delivery of grant--Agreement of parties. Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery.

Source: CivC 1877, § 611, subdiv 1; CL 1887, § 3234, subdiv 1; RCivC 1903, § 927, subdiv 1; RC 1919, § 529 (1); SDC 1939, § 51.1307 (1).

43-4-10 Constructive delivery of grant to stranger for benefit of grantee.

43-4-10. Constructive delivery of grant to stranger for benefit of grantee. Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered where it is delivered to a stranger for the benefit of a grantee, and his assent is shown or may be presumed.

Source: CivC 1877, § 611, subdiv 2; CL 1887, § 3234, subdiv 2; RCivC 1903, § 927, subdiv 2; RC 1919, § 529 (2); SDC 1939, § 51.1307 (2).

43-4-11 Escrow delivery of grant.

43-4-11. Escrow delivery of grant. A grant may be deposited by the grantor with a third person, to be delivered on the performance of a condition, and on delivery by the depository, it will take effect. While in the possession of the third person and subject to condition, it is called an escrow.

Source: CivC 1877, § 609; CL 1887, § 3232; RCivC 1903, § 925; RC 1919, § 527; SDC 1939, § 51.1306.

43-4-12 Redelivery of grant does not transfer title.

43-4-12. Redelivery of grant does not transfer title. Redelivering a grant of real property to the grantor or canceling it does not operate to retransfer the title.

Source: CivC 1877, § 610; CL 1887, § 3233; RCivC 1903, § 926; RC 1919, § 528; SDC 1939, § 51.1308.

43-4-13 Grant interpreted as contract.

43-4-13. Grant interpreted as contract. Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided by this chapter.

Source: CivC 1877, § 612; CL 1887, § 3235; RCivC 1903, § 928; RC 1919, § 530; SDC 1939, § 51.1309.

43-4-14 Construction of grant--Limitations--Operative words.

43-4-14. Construction of grant--Limitations--Operative words. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct.

If the operative words of a grant are doubtful, recourse may be had to its recitals to assist construction.

Source: CivC 1877, §§ 613, 614; CL 1887, §§ 3236, 3237; RCivC 1903, §§ 929, 930; RC 1919, §§ 531, 532; SDC 1939, § 51.1309.

43-4-15 Irreconcilable parts of grant--Prevailing part.

43-4-15. Irreconcilable parts of grant--Prevailing part. If several parts of a grant are absolutely irreconcilable, the former part prevails.

Source: CivC 1877, § 616; CL 1887, § 3239; RCivC 1903, § 932; RC 1919, § 534; SDC 1939, § 51.1309.

43-4-16 Grantee favored in interpretation of grant--Exception.

43-4-16. Grantee favored in interpretation of grant--Exception. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.

Source: CivC 1877, § 615; CL 1887, § 3238; RCivC 1903, § 931; RC 1919, § 533; SDC 1939, § 51.1310.

43-4-17 Title transferred--Intention of parties.

43-4-17. Title transferred--Intention of parties. A transfer vests in the transferee all the actual title to the thing transferred which the transferor then has, unless a different intention is expressed or is necessarily implied.

Source: CivC 1877, § 619; CL 1887, § 3242; RCivC 1903, § 935; RC 1919, § 537; SDC 1939, § 51.1313.

43-4-18 Incidents included with thing transferred.

43-4-18. Incidents included with thing transferred. The transfer of a thing transfers also all its incidents unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself.

Source: CivC 1877, § 620; CL 1887, § 3243; RCivC 1903, § 936; RC 1919, § 538; SDC 1939, § 51.1313.

43-4-19 Transfer of present interest and benefit of condition or covenant.

43-4-19. Transfer of present interest and benefit of condition or covenant. A present interest, and the benefit of a condition or covenant respecting property, may be taken by any natural person under a grant, although not named a party thereto.

Source: CivC 1877, § 621; CL 1887, § 3244; RCivC 1903, § 937; RC 1919, § 539; SDC 1939, § 51.1313.

43-4-20 Definition of terms.

43-4-20. Definition of terms. Terms used in §§ 43-4-20 to 43-4-26, inclusive, mean:

(1) "Consideration," any type of property or thing of legal value, whether delivered in the past, present, or to be delivered in the future. The term includes like-kind exchanges of property;

(2) "Deed," any instrument for the purpose of transferring or conveying the fee title to real property;

(3) "Register," the register of deeds of any county in the State of South Dakota; and

(4) "Value," in the case of any deed not a gift, the amount of the full consideration therefor paid, or to be paid.

Source: SL 1968, ch 27, § 1; SL 1987, ch 314; SL 2007, ch 248, § 1.

43-4-21 Imposition and amount of real estate transfer fee.

43-4-21. Imposition and amount of real estate transfer fee. A fee is hereby imposed at the rate of fifty cents for each five hundred dollars of value or fraction thereof upon the privilege of transferring title to real property in the State of South Dakota, which fee shall be paid by the grantor.

Source: SL 1968, ch 27, § 2.

43-4-22 Exemptions from real estate transfer fee.

43-4-22. Exemptions from real estate transfer fee. The fee imposed by § 43-4-21 does not apply to any transfer of title:

(1) Recorded before July 1, 1968;

(2) By or to the United States of America, this state, or any instrumentality, agency, or political subdivision of either;

(3) Solely in order to provide for or to release security for a debt or obligation;

(4) Which confirms or corrects a deed previously executed and recorded;

(5) Between husband and wife, or parent and child with only nominal actual consideration therefor;

(6) On sale for delinquent taxes or assessments, sheriffs' deeds, other deeds issued in foreclosure actions or proceedings or deeds issued in lieu of foreclosure actions or proceedings;

(7) On partition;

(8) Pursuant to any mergers or consolidations of corporations or limited liability companies or plans of reorganization by which substantially all of the assets of corporations or limited liability companies are transferred;

(9) By a subsidiary corporation to its parent corporation for no consideration, nominal consideration, or in sole consideration of the cancellation or surrender of the subsidiary's stock;

(10) Pursuant to decrees of distribution entered in any decedent's estate;

(11) Between an individual grantor, or grantors, and a corporation, where the grantor or grantors and the owner of the majority of the capital stock of the corporation are the same person;

(12) Between any corporation and its stockholders or creditors, or between any limited liability company and its members or creditors, if to effectuate a dissolution of the corporation or limited liability company it is necessary to transfer the title of real property from the corporate entity to the stockholders or creditors;

(13) On cemetery lots and grave sites;

(14) Between an individual grantor, or grantors, and a limited or general partnership if the grantor or grantors and the owner of the majority interest in the limited or general partnership are the same person;

(15) Between a fiduciary and a beneficiary of the fiduciary or between a fiduciary and a third party, if the transfer or conveyance is to accommodate the fiduciary relationship;

(16) Between individuals, regardless of the relationship, if the conveyance is an absolute gift without consideration of any kind in return for the conveyance;

(17) Pursuant to a decree of divorce, annulment, or separate maintenance or pursuant to a settlement agreement approved or adopted by a decree of divorce, annulment, or separate maintenance;

(18) For which no consideration was given;

(19) Between any limited liability company and its members.

Source: SL 1968, ch 27, § 6; SL 1969, ch 26, §§ 2, 3; SL 1972, ch 232, § 1; SL 1978, ch 304; SL 1980, ch 292; SL 1985, ch 335; SL 1989, ch 376; SL 1990, ch 346; SL 1994, ch 351, § 168.

43-4-23 Exempt transfers to be marked.

43-4-23. Exempt transfers to be marked. Each transfer of title not subject to the fee as provided in § 43-4-21, shall have the words "exempt from transfer fee" stated thereon and indicate the applicable subdivision of § 43-4-22 under which the exemption is claimed.

Source: SL 1968, ch 27, § 3; SL 1987, ch 315.

43-4-24 Collection of real estate transfer fee by register--Amount indicated on face of deed.

43-4-24. Collection of real estate transfer fee by register--Amount indicated on face of deed. At the time any deed evidencing a transfer of title subject to the fee imposed by § 43-4-21 is offered for recordation, the register shall collect the fee based upon the value declared and shall indicate the amount of the fee on the face of the deed after recordation.

Source: SL 1968, ch 27, § 2; SL 2007, ch 249, § 1.

43-4-25 Disposition of proceeds of real estate transfer fee collections--Records of register.

43-4-25. Disposition of proceeds of real estate transfer fee collections--Records of register. The proceeds of all fees collected under § 43-4-21 shall be remitted on a monthly basis to the credit of the county general fund by the register, who shall obtain a receipt therefor from the county treasurer and keep such records as may be prescribed by the state auditor general.

Source: SL 1968, ch 27, § 4; SL 1972, ch 232, § 2.

43-4-26 Falsification of value of real estate or false claim of exemption as misdemeanor.

43-4-26. Falsification of value of real estate or false claim of exemption as misdemeanor. No person may intentionally falsify the value of transferred real estate to the register or intentionally claim a transfer to be "exempt from transfer fee" with knowledge that the transfer does not fall within the exemptions provided in this chapter and to pay an insufficient fee or no fee on such transfer as provided in § 43-4-21. A violation of this section is a Class 1 misdemeanor.

Source: SL 1968, ch 27, § 5; SL 1969, ch 26, § 1; SL 1983, ch 15, § 1; SL 1989, ch 377.

43-4-27 Satisfaction of bequest, devise, or transfer in trust by distribution of assets in kind at...

43-4-27. Satisfaction of bequest, devise, or transfer in trust by distribution of assets in kind at values determined for federal estate tax purposes--Appreciation or depreciation in value considered. Whenever under any last will, or trust indenture, the personal representative, trustee, or other fiduciary is required to, or has an option to, satisfy a bequest, devise, or transfer in trust to or for the benefit of the surviving spouse, or other beneficiary, in kind at the values as finally determined for federal estate tax purposes, the personal representative, trustee, or other fiduciary shall, in the absence of contrary provisions in such will or trust indenture, satisfy such bequest, devise, or transfer by distribution of assets, including cash, fairly representative of the appreciation or depreciation in the value of all properties available for distribution in satisfaction of such bequest, devise, or transfer.

Source: SL 1968, ch 152, § 1.

43-4-28 Effective date of application of provisions as to distributions at values determined for f...

43-4-28. Effective date of application of provisions as to distributions at values determined for federal estate tax purposes. The provisions of § 43-4-27 shall apply to wills of the kind mentioned of all decedents dying before or after July 1, 1968, and to all trust indentures of the kind mentioned, whether made before or after July 1, 1968, and to the distributions of assets under all such wills or trust indentures, made after July 1, 1968, but it shall not apply to any distributions made prior to July 1, 1968, and shall not impose any liability or obligation upon any fiduciary as a result of any distribution prior to July 1, 1968.

Source: SL 1968, ch 152, § 2.

43-4-29

43-4-29 to 43-4-36. Repealed by SL 1995, ch 167, § 184

43-4-37 Definition of terms for required disclosures in certain real estate transfers.

43-4-37. Definition of terms for required disclosures in certain real estate transfers. Terms used in §§ 43-4-38 to 43-4-44, inclusive, mean:

(1) "Buyer," a person negotiating or attempting to become an owner of residential real property by means of a transfer which is subject to §§ 43-4-38 to 43-4-44, inclusive;

(2) "Disclosure statement," the property condition disclosure statement as provided in § 43-4-44;

(3) "Residential real property," all residential real property consisting of not more than four family dwelling units, all of which are contained in one structure;

(4) "Seller," an owner of residential real property;

(5) "Transfer," a sale, exchange, installment sale contract, lease with an option to purchase, other option to purchase, or a ground lease coupled with improvements.

Source: SL 1993, ch 325, § 1; SL 1994, ch 337, § 1.

43-4-38 Buyer furnished completed disclosure statement prior to written offer--Amendment.

43-4-38. Buyer furnished completed disclosure statement prior to written offer--Amendment. The seller of residential real property shall furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer. If after delivering the disclosure statement to the buyer or the buyer's agent and prior to the date of closing for the property or the date of possession of the property, whichever comes first, the seller becomes aware of any change of material fact which would affect the disclosure statement, the seller shall furnish a written amendment disclosing the change of material fact.

Source: SL 1993, ch 325, § 2; SL 1994, ch 337, § 2; SL 1995, ch 247.

43-4-39 Terminating written offer made prior to disclosure statement.

43-4-39. Terminating written offer made prior to disclosure statement. If the disclosure statement or a material amendment to the disclosure statement is delivered to the buyer after the buyer has made a written offer, the buyer may terminate the offer by delivering a written notice of termination to the seller or the seller's agent within three days after the disclosure statement or amendment is delivered in person or within six days after the disclosure statement or amendment is delivered by deposit in the mail.

Source: SL 1993, ch 325, § 3.

43-4-40 Liability for defect disclosed in statement.

43-4-40. Liability for defect disclosed in statement. Except as provided in § 43-4-42, a seller is not liable for a defect or other condition in the residential real property being transferred if the seller truthfully completes the disclosure statement.

Source: SL 1993, ch 325, § 4; SL 1994, ch 337, § 3.

43-4-41 Good faith disclosure required.

43-4-41. Good faith disclosure required. The seller shall perform each act and make each disclosure in good faith.

Source: SL 1993, ch 325, § 5.

43-4-42 Liability for failure to comply with disclosure statement requirements.

43-4-42. Liability for failure to comply with disclosure statement requirements. A transfer that is subject to §§ 43-4-37 to 43-4-44, inclusive, is not invalidated solely because a person fails to comply with §§ 43-4-37 to 43-4-44, inclusive. However, a person who intentionally or who negligently violates §§ 43-4-37 to 43-4-44, inclusive, is liable to the buyer for the amount of the actual damages and repairs suffered by the buyer as a result of the violation or failure. In any court action pursuant to this section, the court may award costs and attorney fees to the prevailing party. Nothing in this section precludes or restricts any other rights or remedies of the buyer or seller.

Source: SL 1993, ch 325, § 6; SL 2009, ch 220, § 1.

43-4-43 Application of disclosure statement requirements.

43-4-43. Application of disclosure statement requirements. Sections 43-4-37 to 43-4-44, inclusive, do not apply to the following transfers:

(1) Transfers pursuant to court order, including transfers ordered by probate court in the administration of an estate, transfers between spouses resulting from a judgment of dissolution of marriage or legal separation, transfer pursuant to a writ of execution, transfers by a trustee in bankruptcy, transfers by eminent domain, transfers by government agencies, and transfers resulting from a decree for specific performance;

(2) Transfers to a mortgagee by a mortgagor in default, transfers by any foreclosure sale after default in an obligation secured by a mortgage, transfers by a mortgagee or a beneficiary under a deed of trust who has acquired the real property by foreclosure or by a deed in lieu of foreclosure or transfers by a collateral assignment of beneficial interest;

(3) Transfers by a fiduciary in the course of the administration of a decedent's estate, guardianship, conservatorship, or trust;

(4) Transfers from one co-owner to one or more other co-owners;

(5) Transfers made to a spouse, a child, a parent, a sibling, a grandchild, or a grandparent;

(6) Transfers of newly constructed residential real property which has never been occupied.

Source: SL 1993, ch 325, § 7; SL 1994, ch 337, § 5.

43-4-44 Property condition disclosure statement. 43-4-44. Property condition disclosure statement. The following form shall be used for the property condition disclosure statement:

SELLER'S PROPERTY CONDITION DISCLOSURE STATEMENT

(This disclosure shall be completed by the seller. This is a disclosure required by law. If you do not understand this form, seek legal advice.)
Seller _________________________________________________________________________
Property Address ________________________________________________________________

___________________________________________________________________________
This Disclosure Statement concerns the real property identified above situated in the City of __________ County of __________, State of South Dakota.
THIS STATEMENT IS A DISCLOSURE OF THE CONDITION OF THE ABOVE DESCRIBED PROPERTY IN COMPLIANCE WITH § 43-4-38. IT IS NOT A WARRANTY OF ANY KIND BY THE SELLER OR ANY AGENT REPRESENTING ANY PARTY IN THIS TRANSACTION AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE PARTIES MAY WISH TO OBTAIN. Seller hereby authorizes any agent representing any party in this transaction to provide a copy of this statement to any person or entity in connection with any actual or anticipated sale of the property.
IF ANY MATERIAL FACT CHANGES BEFORE CONVEYANCE OF TITLE TO THIS PROPERTY, THE SELLER MUST DISCLOSE SUCH MATERIAL FACT WITH A WRITTEN AMENDMENT TO THIS DISCLOSURE STATEMENT.

I. LOT OR TITLE INFORMATION

1.      When did you purchase or build the home? ________________________________________
If the answer is yes to any of the following, please explain under additional comments or on an attached separate sheet.
______________________________________________________________________________
2.      Were there any title problems when you purchased the property?
Yes ____ No ____
3.      Are there any recorded liens or financial instruments against the property, other than a first mortgage?
Yes ____ No ____
4.      Are there any unrecorded liens or financial instruments against the property, other than a first mortgage; or have any materials or services been provided in the past one hundred twenty days that would create a lien against the property under chapter 44-9?
Yes ____ No ____ Unknown ____
5.      Are there any easements which have been granted in connection with the property (other than normal utility easements for public water and sewer, gas and electric service, telephone service, cable television service, drainage, and sidewalks)?
Yes ____ No ____ Unknown ____
6.      Are there any problems related to establishing the lot lines/boundaries?
Yes ____ No ____ Unknown ____
7.      Do you have a location survey in your possession or a copy of the recorded plat? If yes, attach a copy.
Yes ____ No ____ Unknown ____
8.      Are you aware of any encroachments or shared features, from or on adjoining property (i.e. fences, driveway, sheds, outbuildings, or other improvements)?
Yes ____ No ____
9.      Are you aware of any covenants or restrictions affecting the use of the property in accordance with local law? If yes, attach a copy of the covenants and restrictions.

Yes ____ No ____
10.      Are you aware of any current or pending litigation, foreclosure, zoning, building code or restrictive covenant violation notices, mechanic's liens, judgments, special assessments, zoning changes, or changes that could affect your property?
Yes ____ No ____
11.      Is the property currently occupied by the owner?
Yes ____ No ____
12.      Does the property currently receive the owner occupied tax reduction pursuant to SDCL 10-13-39?
Yes ____ No ____
13.      Is the property currently part of a property tax freeze for any reason?
Yes ____ No ____ Unknown ____
14.      Is the property leased?
Yes ____ No ____
15.      If leased, does the property use comply with local zoning laws?
Yes ____ No ____
16.      Does this property or any portion of this property receive rent? If yes, how much $____ and how often ____?
Yes ____ No ____
17.      Do you pay any mandatory fees or special assessments to a homeowners' or condominium association?
Yes ____ No ____
If yes, what are the fees or assessments? $ ____ per ____ (i.e. annually, semi-annually, monthly)
Payable to whom: _______________________________________________________________
For what purpose? _______________________________________________________________
18.      Are you aware if the property has ever had standing water in either the front, rear, or side yard more than forty-eight hours after heavy rain?
Yes ____ No ____
19.      Is the property located in or near a flood plain?
Yes ____ No ____ Unknown ____
20.      Are wetlands located upon any part of the property?
Yes ____ No ____ Unknown ____
21.      Are you aware of any private transfer fee obligations, as defined pursuant to § 43-4-48, that would require a buyer or seller of the property to pay a fee or charge upon the transfer of the property, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property?
Yes ____ No ____ Unknown ____
If yes, what are the fees or charges? $______ per ______ (i.e. annually, semi-annually, monthly)

II. STRUCTURAL INFORMATION

If the answer is yes to any of the following, please explain under additional comments or on an attached separate sheet.
1.      Are you aware of any water penetration problems in the walls, windows, doors, basement, or crawl space?
Yes ____ No ____
2.      What water damage related repairs, if any, have been made?
If any, when? ___________________________________________________________________
3.      Are you aware if drain tile is installed on the property?
Yes ____ No ____
4.      Are you aware of any interior cracked walls or floors, or cracks or defects in exterior driveways, sidewalks, patios, or other hard surface areas?

Yes ____ No ____
What related repairs, if any, have been made?
______________________________________________________________________________
5.      Are you aware of any roof leakage, past or present?
Yes ____ No ____
Type of roof covering: ____________________________________________________________
Age: __________________________________________________________________________
What roof repairs, if any, have been made, when and by whom? ___________________________
Describe any existing unrepaired damage to the roof: ___________________________________
6.      Are you aware of insulation in:
the ceiling/attic? Yes ____ No ____
the walls? Yes ____ No ____
the floors? Yes ____ No ____
7.      Are you aware of any pest infestation or damage, either past or present?
Yes ____ No ____
8.      Are you aware of the property having been treated for any pest infestation or damage?
Yes ____ No ____
If yes, who treated it and when? ____________________________________________________
9.      Are you aware of any work upon the property which required a building, plumbing, electrical, or any other permit?
Yes ____ No ____
If yes, describe the work: __________________________________________________________
Was a permit obtained? Yes _______________________________________________________
Was the work approved by an inspector? Yes ____ No ____
10.      Are you aware of any past or present damage to the property (i.e. fire, smoke, wind, floods, hail, or snow)?
Yes ____ No ____
If yes, describe __________________________________________________________________
Have any insurance claims been made?
Yes ____ No ____ Unknown ____
Was an insurance payment received?
Yes ____ No ____ Unknown ____
Has the damage been repaired?
Yes ____ No ____
If yes, describe in detail: __________________________________________________________
______________________________________________________________________________
11.      Are you aware of any problems with sewer blockage or backup, past or present?
Yes ____ No ____
12.      Are you aware of any drainage, leakage, or runoff from any sewer, septic tank, storage tank, or drain on the property into any adjoining lake, stream, or waterway?
Yes ____ No ____
If yes, describe in detail: __________________________________________________________
______________________________________________________________________________

III. SYSTEMS/UTILITIES INFORMATION

	NONE/NOT		NOT
	INCLUDED	WORKING	WORKING
1. 220 Volt Service	_____	_____	_____
2. Air Exchanger	_____	_____	_____
3. Air Purifier	_____	_____	_____
4. Attic Fan	_____	_____	_____
5. Burglar Alarm and Security System	_____	_____	_____
6. Ceiling Fan	_____	_____	_____
7. Central Air - Electric	_____	_____	_____
8. Central Air - Water Cooled	_____	_____	_____
9. Cistern	_____	_____	_____
10. Dishwasher	_____	_____	_____
11. Disposal	_____	_____	_____
12. Doorbell	_____	_____	_____
13. Fireplace	_____	_____	_____
14. Fireplace Insert	_____	_____	_____
15. Garage Door/Opener Control(s)	_____	_____	_____
16. Garage Wiring	_____	_____	_____
17. Heating System	_____	_____	_____
18. Hot Tub, Whirlpool, and Controls	_____	_____	_____
19. Humidifier	_____	_____	_____
20. Intercom	_____	_____	_____
21. Light Fixtures	_____	_____	_____
22. Microwave/Hood	_____	_____	_____
23. Plumbing and Fixtures	_____	_____	_____
24. Pool and Equipment	_____	_____	_____
25. Propane Tank	_____	_____	_____
26. Radon System	_____	_____	_____
27. Sauna	_____	_____	_____
28. Septic/Leaching Field	_____	_____	_____
29. Sewer Systems/Drains	_____	_____	_____
30. Smoke/Fire Alarm	_____	_____	_____
31. Solar House - Heating	_____	_____	_____
32. Sump Pump(s)	_____	_____	_____
33. Switches and Outlets	_____	_____	_____
34. Underground Sprinkler and Heads	_____	_____	_____
35. Vent Fan	_____	_____	_____
36. Water Heater - Electric or Gas	_____	_____	_____
37. Water Purifier	_____	_____	_____
38. Water Softener - Leased or Owned	_____	_____	_____
39. Well and Pump	_____	_____	_____
40. Wood Burning Stove	_____	_____	_____

IV. HAZARDOUS CONDITIONS

Are you aware of any existing hazardous conditions of the property and are you aware of any tests having been performed?

EXISTING CONDITIONS TESTS PERFORMED
	YES	NO	YES	NO
1. Methane Gas	_____	_____	_____	_____
2. Lead Paint	_____	_____	_____	_____
3. Radon Gas (House)	_____	_____	_____	_____
4. Radon Gas (Well)	_____	_____	_____	_____
5. Radioactive Materials	_____	_____	_____	_____
6. Landfill, Mineshaft	_____	_____	_____	_____
7. Expansive Soil	_____	_____	_____	_____
8. Mold	_____	_____	_____	_____
9. Toxic Materials	_____	_____	_____	_____
10. Urea Formaldehyde Foam Insulations	_____	_____	_____	_____
11. Asbestos Insulation	_____	_____	_____	_____
12. Buried Fuel Tanks	_____	_____	_____	_____
13. Chemical Storage Tanks	_____	_____	_____	_____
14. Fire Retardant Treated Plywood	_____	_____	_____	_____
15. Production of Methamphetamines	_____	_____	_____	_____

If the answer is yes to any of the questions above, please explain in additional comments or on an attached separate sheet.

V. MISCELLANEOUS INFORMATION

1. Is the street or road located at the end of the driveway to the property public or private?
Public __________ Private __________
2. Is there a written road maintenance agreement?

If yes, attach a copy of the maintenance agreement.
Yes __________ No __________
3.      When was the fireplace/wood stove/chimney flue last cleaned?
____________________
4.      Within the previous twelve months prior to signing this document, are you aware of any of the following occurring on the subject property ?
a.      A human death by homicide or suicide? If yes, explain:
________________________________________
Yes __________ No __________
b.      Other felony committed against the property or a person on the property? If yes, explain:
________________________________________
Yes __________ No __________
5.      Is the water source public or private (select one) ?
6.      If private, what is the date and result of the last water test?
________________________________________
7.      Is the sewer system public __________ or private __________ (select one)?
8.      If private, what is the date of the last time the septic tank was pumped? __________
9.      Are there broken window panes or seals?
Yes __________ No __________
If yes, specify: ______________________________
10.      Are there any items attached to the property that will not be left, such as: towel bars, mirrors, swag lamps and hooks, curtain rods, window coverings, light fixtures, clothes lines, swing sets, storage sheds, ceiling fans, basketball hoops, mail boxes, etc.
Yes __________ No __________
If yes, please list ______________________________
11.      Are you aware of any other material facts or problems that have not been disclosed on this form?
Yes __________ No __________
If yes, explain: ______________________________

VI. ADDITIONAL COMMENTS (ATTACH ADDITIONAL PAGES IF NECESSARY)

______________________________________________________________________________
______________________________________

CLOSING SECTION

The Seller hereby certifies that the information contained herein is true and correct to the best of the Seller's information, knowledge, and belief as of the date of the Seller's signature below. If any of these conditions change before conveyance of title to this property, the change will be disclosed in a written amendment to this disclosure statement.
SELLER ____________________ DATE __________
SELLER ____________________ DATE __________
THE SELLER AND THE BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE AND INSPECTIONS OF THE PROPERTY TO OBTAIN A TRUE REPORT AS TO THE CONDITION OF THE PROPERTY AND TO PROVIDE FOR APPROPRIATE PROVISIONS IN ANY CONTRACT OF SALE AS NEGOTIATED BETWEEN THE SELLER AND THE BUYER WITH RESPECT TO SUCH PROFESSIONAL ADVICE AND INSPECTIONS.
I/We acknowledge receipt of a copy of this statement on the date appearing beside my/our signature(s) below. Any agent representing any party to this transaction makes no representations and is not responsible for any conditions existing in the property.
BUYER ____________________ DATE __________
BUYER ____________________ DATE __________

Source: SL 1993, ch 325, § 8; SL 1994, ch 337, § 4; SL 2005, ch 230, § 1; SL 2007, ch 250, § 1; SL 2008, ch 224, § 1; SL 2011, ch 196, § 13.

43-4-45

43-4-45. Repealed by SL 2005, ch 230, § 2.

43-4-46 Transfer defined.

43-4-46. Transfer defined. For the purposes of §§ 43-4-47 to 43-4-57, inclusive, the term, transfer, means the sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state.

Source: SL 2011, ch 196, § 1.

43-4-47 Private transfer fee defined.

43-4-47. Private transfer fee defined. For the purposes of §§ 43-4-48 to 43-4-57, inclusive, the term, private transfer fee, means a fee or charge required by a private transfer fee obligation and payable upon the transfer of an interest in real property, or payable for the right to make or accept such transfer, regardless of whether the fee is a fixed amount or is determined as a percentage of the value of the property, the purchase price, or other consideration given for the transfer. The term, private transfer fee, does not include the following:

(1) Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development, or sale of the property if such additional consideration is payable on a onetime basis only and the obligation to make such payment does not bind successors in title to the property. For the purposes of this subdivision, an interest in real property may include a separate mineral estate and its appurtenant surface access rights;

(2) Any commission payable to a licensed real estate broker for the transfer of real property pursuant to an agreement between the broker and the grantor or the grantee, including any subsequent additional commission for that transfer payable by the grantor or the grantee based upon any subsequent appreciation, development, or sale of the property;

(3) Any interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage against real property, including any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates, and any shared appreciation interest or profit participation or other consideration and payable to the lender in connection with the loan;

(4) Any rent, reimbursement, charge, fee, or other amount payable by a lessee to a lessor under a lease, including any fee payable to the lessor for consenting to an assignment, subletting, encumbrance, or transfer of the lease;

(5) Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the property to another person;

(6) Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by a governmental authority;

(7) Any fee, charge, assessment, fine, or other amount payable to a homeowners', condominium, cooperative, mobile home, or property owners' association pursuant to a declaration or covenant or law applicable to such association, including fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent;

(8) Any fee, charge, assessment, dues, contribution, or other amount pertaining to the purchase or transfer of a club membership relating to real property owned by the member, including any amount determined by reference to the value, purchase price, or other consideration given for the transfer of the real property.

Source: SL 2011, ch 196, § 2.

43-4-48 Private transfer fee obligation defined.

43-4-48. Private transfer fee obligation defined. For the purposes of §§ 43-4-47 to 43-4-57, inclusive, the term, private transfer fee obligation, means an obligation arising under a declaration or covenant recorded against the title to real property, or under any other contractual agreement or promise, whether or not recorded, that requires or purports to require the payment of a private transfer fee to the declarant or other person specified in the declaration, covenant, or agreement, or to any successor or assign, upon a subsequent transfer of an interest in the real property.

Source: SL 2011, ch 196, § 3.

43-4-49 Private transfer fee obligations after June 30, 2011 unenforceable-- Private transfer fee ...

43-4-49. Private transfer fee obligations after June 30, 2011 unenforceable-- Private transfer fee obligations before June 30, 2011 not presumed valid and enforceable. Any private transfer fee obligation recorded or entered into in this state after June 30, 2011, does not run with the title to real property and is not binding on or enforceable at law or in equity against any subsequent owner, purchaser, or mortgagee of any interest in real property as an equitable servitude or otherwise. Any private transfer fee obligation that is recorded or entered into in this state after June 30, 2011, is void and unenforceable. No private transfer fee obligation recorded or entered into in this state before June 30, 2011, is presumed valid and enforceable.

Source: SL 2011, ch 196, § 4.

43-4-50 Liability for private transfer fee obligations recorded or entered into after June 30, 201...

43-4-50. Liability for private transfer fee obligations recorded or entered into after June 30, 2011. Any person who records or enters into an agreement imposing a private transfer fee obligation in the person's favor after June 30, 2011, is liable for any damages resulting from the imposition of the transfer fee obligation on the transfer of an interest in the real property, including the amount of any transfer fee paid by a party to the transfer, and any attorney fees, expenses, and costs incurred by a party to the transfer or mortgagee of the real property to recover any transfer fee paid or in connection with an action to quiet title. If an agent acts on behalf of a principal to record or secure a private transfer fee obligation, liability shall be assessed to the principal, rather than the agent.

Source: SL 2011, ch 196, § 5.

43-4-51 Disclosure of private transfer fee obligations.

43-4-51. Disclosure of private transfer fee obligations. Private transfer fee obligations shall be disclosed as follows:

(1) For transfers of real property subject to the disclosure requirements contained in §§ 43-4-38 to 43-4-44, inclusive, disclosure of any private transfer fee obligations shall be made using the property condition disclosure statement set forth in § 43-4-44;

(2) For transfers of real property not subject to the disclosure requirements contained in §§ 43-4-38 to 43-4-44, inclusive, each seller of real property shall furnish to any purchaser a written statement disclosing the existence of any private transfer fee obligation. This written statement shall include a description of the private transfer fee obligation and include a statement that private transfer fee obligations are subject to certain prohibitions pursuant to §§ 43-4-46 to 43-4-57, inclusive. The written document must contain a statement with the following language:

A private transfer fee obligation has been imposed with respect to this property. A private transfer obligation may lower the value of this property. State law prohibits the creation of private transfer fee obligations pursuant to § 43-4-49 and requires certain notice procedures to be followed with respect to private transfer fee obligations pursuant to §§ 43-4-52 to 43-4-57, inclusive.

Source: SL 2011, ch 196, § 6.

43-4-52 Notices of private transfer fee obligation to be recorded for obligations imposed before J...

43-4-52. Notices of private transfer fee obligation to be recorded for obligations imposed before July 1, 2011--Contents. For any private transfer fee obligation imposed prior to July 1, 2011, the receiver of the fee shall, prior to December 31, 2011, record in the office of the register of deeds in the county in which the real property subject to the private transfer fee is located, a separate document that meets all of the following requirements:

(1) The title of the document shall be Notice of Private Transfer Fee Obligation in at least fourteen point boldface type;

(2) The amount, if the fee is a flat amount, or the percentage of the sales price constituting the cost of the transfer fee, or such other basis by which the transfer fee is to be calculated;

(3) If the real property is residential property, actual dollar-cost examples of the transfer fee for a home priced at one hundred thousand dollars, two hundred fifty thousand dollars, and five hundred thousand dollars;

(4) The date or circumstances under which the private transfer fee obligation expires, if any;

(5) The purpose for which the funds from the private transfer fee obligation will be used;

(6) The name of the person to which funds are to be paid and specific contact information regarding where the funds are to be sent;

(7) The acknowledged signature of the payee; and

(8) The legal description of the real property burdened by the private transfer fee obligation.

Source: SL 2011, ch 196, § 7.

43-4-53 Amendment to notice of transfer fee.

43-4-53. Amendment to notice of transfer fee. The person to whom the transfer fee is to be paid may file an amendment to the notice of transfer fee containing new contact information, but such amendment shall contain the recording information of the notice of transfer fee which it amends and the legal description of the property burdened by the private transfer fee obligation.

Source: SL 2011, ch 196, § 8.

43-4-54 Effect of failure to record notice of private transfer fee obligation.

43-4-54. Effect of failure to record notice of private transfer fee obligation. If the payee fails to comply fully with § 43-4-52, the grantor of any real property burdened by the private transfer fee obligation may proceed with the conveyance of any interest in the real property to any grantee and in so doing is deemed to have acted in good faith and is not subject to any obligations under the private transfer fee obligation. In such event, the real property thereafter shall be conveyed free and clear of such transfer fee and private transfer fee obligation.

Source: SL 2011, ch 196, § 9.

43-4-55 Effect of failure to provide written statement of private transfer fee payable within thir...

43-4-55. Effect of failure to provide written statement of private transfer fee payable within thirty days of request. If the payee fails to provide a written statement of the transfer fee payable within thirty days of the date of a written request for such statement sent to the address shown in the notice of transfer fee, the grantor, on recording of the affidavit required under § 43-4-56, may convey any interest in the real property to any grantee without payment of the transfer fee and is not subject to any further obligation under the private transfer fee obligation. In such event the real property shall be conveyed free and clear of the transfer fee and private transfer fee obligation.

Source: SL 2011, ch 196, § 10.

43-4-56 Affidavit concerning request for and failure to provide written statement of transfer fee-...

43-4-56. Affidavit concerning request for and failure to provide written statement of transfer fee--Recording--Contents. An affidavit stating the facts enumerated under § 43-4-57 shall be recorded in the office of the register of deeds in the county in which the real property is situated prior to or simultaneously with a conveyance pursuant to § 43-4-55 of real property unburdened by a private transfer fee obligation. An affidavit filed under this section shall state that the affiant has actual knowledge of, and is competent to testify to, the facts in the affidavit and shall include the legal description of the real property burdened by the private transfer fee obligation, the name of the person appearing by the record to be the owner of such real property at the time of the signing of such affidavit, a reference to the instrument of record containing the private transfer fee obligation, and an acknowledgment that the affiant is testifying under penalty of perjury.

Source: SL 2011, ch 196, § 11.

43-4-57 Recorded affidavit constitutes prima facie evidence of stated facts.

43-4-57. Recorded affidavit constitutes prima facie evidence of stated facts. If recorded, an affidavit as described in § 43-4-56 constitutes prima facie evidence that:

(1) A request for the written statement of the transfer fee payable in order to obtain a release of the fee imposed by the private transfer fee obligation was sent to the address shown in the notification; and

(2) The person listed on the notice of transfer fee failed to provide the written statement of the transfer fee payable within thirty days of the date of the notice sent to the address shown in the notification.

Source: SL 2011, ch 196, § 12.

Title 43