Title 36 — PROFESSIONS AND OCCUPATIONS

Any person licensed under this chapter shall deliver a copy of any process or pleading to which that licensee is a party to the executive director of the commission within ten days of its being served by or upon him. Failure to file with the executive director is not jurisdiction…

Terms used in this chapter mean: (1) "Agency," any relationship by which one person acts for or on behalf of a client subject to the client's reasonable direction and control; (2) "Agency agreement," a written agreement between a broker and a client that creates a fiduciary relat…

For the purposes of this chapter, a property manager is any person who for a fee, commission or other valuable consideration or with the intent or expectation of receiving a fee, commission or consideration negotiates or attempts to negotiate the rental, exchange or leasing or an…

Failure to comply with the provisions of §§ 36-21A-93 to 36-21A-98 , inclusive, make any contract entered into in this state void and unenforceable. Money paid under that contract to the certificate holder, together with interest at the Category A rate of interest as established …

The commission shall establish and maintain a real estate recovery fund, which shall be used to provide a source for payment of unsatisfied judgments obtained by persons aggrieved by the acts of a person licensed under this chapter. The commission shall maintain one hundred thous…

If at the end of any calendar year the amount remaining in the real estate recovery fund is less than one hundred thousand dollars, every person registering pursuant to this chapter shall pay, in addition to the biennial registration fee, a separate fee in an amount declared suff…

A person commencing an action that may result in the filing of a claim against the real estate recovery fund shall serve a copy of the summons and complaint upon the commission within ten days of service upon the defendant. The commission may intervene in the action pursuant to §…

If any person obtains a final judgment in any court of competent jurisdiction against a person licensed under this chapter, on grounds of fraudulent, deceptive or dishonest practices, or conversion of trust funds arising directly out of any transaction when the judgment debtor wa…

At the hearing the applicant shall show the following: (1) He is not a spouse of the judgment debtor, or the personal representative of such spouse; (2) If he is licensed under this chapter, he was not acting as a principal or agent in a real estate transaction; (3) He has compli…

Any person who knowingly files with the commission any notice, statement or other document required under §§ 36-21A-101 to 36-21A-115 , inclusive, which is false or untrue or contains any material misstatement of fact is guilty of perjury. Source: SL 1992, ch 273 , § 106.

If an applicant's judgment is by default, stipulation or consent, or if the action against the licensee was defended by a trustee in bankruptcy, the applicant has the burden of proving his cause of action for fraudulent, deceptive or dishonest practices or conversion of trust fun…

The commission may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review including examination of witnesses. The commission may move the court at any time to dismiss the application if it appears there are no triable issues…

The judgment debtor may defend any such action on his own behalf and shall have recourse to all appropriate means of defense and review including examination of witnesses. Source: SL 1992, ch 273 , § 109.

For the purposes of this chapter, real estate or realty is any interest or estate in real property or the property's improvements or fixtures whether corporeal, incorporeal, freehold or nonfreehold, and whether the real property is situated in this state or elsewhere, and include…

If the court proceeds upon an application, it shall order payment out of the real estate recovery fund only upon a determination that the applicant has a valid cause of action, and has complied with the provisions of §§ 36-21A-101 to 36-21A-115 , inclusive. The judgment shall be …

If the court finds after the hearing that the claim should be levied against the portion of the fund allocated for the purpose of recovery of unsatisfied judgments, the court shall enter an order directed to the commission requiring payment from the fund in the amount payable upo…

The liability of the fund for the acts of a licensee, when acting as such and occurring before the date of the court order entered pursuant to §§ 36-21A-101 to 36-21A-115 , inclusive, is terminated whenever such order authorizes payments from the fund for judgments or unsatisfied…

If, at any time, the money deposited in the fund is insufficient to satisfy any duly authorized claim or portion thereof, the commission shall, when sufficient money has been deposited in the real estate recovery fund, satisfy those unpaid claims or portions thereof, in the order…

If the commission pays from the fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license shall automatically be suspended upon the effective date of an order by the court authorizing payment from the fund. No licensee may be re…

If, upon the order of the court, the commission has paid from the fund any sum to the judgment creditor, the commission shall be subrogated to all of the rights of the judgment creditor to the extent of the amount so paid. The judgment creditor shall assign all his right, title a…

Nothing contained in §§ 36-21A-101 to 36-21A-115 , inclusive, limits the authority of the commission to take disciplinary action against any licensee under other provisions of this chapter. The repayment in full of all obligations to the fund by a licensee does not nullify or mod…

The real estate commission shall adopt rules, pursuant to chapter 1-26 , requiring as a condition of licensure that all real estate salesman and brokers, except those who hold inactive licenses, carry errors and omissions insurance covering all activities contemplated under this …

For the purposes of this chapter, a real estate salesperson is any person who for compensation or consideration is associated with a responsible broker, to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale, lease, rental, or exchange of real pro…

For the purposes of this chapter, a residential rental agent is any person who for compensation or consideration is associated with a real estate broker or property manager to negotiate or attempt to negotiate the rental or leasing of residential property, or collect rents or att…

For the purposes of this chapter, the terms, broker price opinion and comparative market analysis, mean an estimate prepared by a licensed broker or salesperson that details the probable selling price or leasing price of a particular parcel of or interest in real property and pro…

The Real Estate Commission may negotiate by bid with an insurance provider for a group policy under which coverage is available to all licensees with no right on the part of the insurer to cancel any licensee. Any licensee may obtain errors and omissions insurance independently i…

The Real Estate Commission shall determine the terms and conditions of coverage required by § 36-21A-119 , including the minimum limits of coverage, the permissible deductible and the permissible exceptions. Source: SL 1993, ch 288 , § 3.

Each licensee shall be notified of the required terms and conditions of coverage at least thirty days before the biennial license renewal date. A certificate of coverage, showing compliance with the required terms and conditions of coverage, shall be filed annually with the real …

36-21A-124 Employment status--Independent contractor. 36-21A-125 Adverse material fact defined. 36-21A-126 Brokerage defined. 36-21A-127 Confidential information defined. 36-21A-128 Informative acts that do not constitute representation. 36-21A-129 Substantive contact defined. 36…

For purposes of determining employment status, any broker, broker associate, and salesperson who is a natural person and licensed under this chapter is engaged in an independently established profession. Any such licensee is an independent contractor if: (1) The licensed broker w…

For the purposes of this chapter, an adverse material fact is information that negatively affects the value of the property or a party's ability to perform its obligations in a real estate transaction. Adverse material facts include: (1) Any environmental hazards affecting the pr…

For the purposes of this chapter, a brokerage is the business or occupation of a real estate broker. The term includes licensees associated with the broker who have been assigned management duties. Source: SL 1998, ch 229 , § 3.

For the purposes of this chapter, confidential information is any information given to the licensee in confidence, or any information obtained by the licensee that the licensee knows a reasonable individual would want to keep confidential, unless disclosure of the information is …

For the purposes of this chapter, initial acts that a licensee may perform for a consumer that are informative in nature and do not rise to the level of representation on behalf of a consumer include the following: (1) Responding to phone inquiries by consumers as to the availabi…

For the purposes of this chapter, substantive contact is any performance beyond initial acts described in § 36-21A-128 and includes discussion of: (1) Any specific financial qualifications of the buyer; or (2) The selling or buying motives or objectives of the seller or buyer, in…

There is created a South Dakota Real Estate Commission. The commission consists of five members appointed by the Governor. The members may not all be of the same political party. Three members shall be active real estate brokers; two shall be members of the public. Source: SL 199…

Any agency agreement in which a broker represents a seller or lessor shall be in writing and shall contain the proper legal description, the price and terms, the date of authorization, the expiration date, the type of agency relationship established, compensation to be paid, auth…

Any licensee performing services authorized by §§ 36-21A-119 to 36-21A-150 , inclusive, is limited to the following relationships: (1) Single agent: (a) Seller/landlord agent; (b) Buyer/tenant agent; (2) Limited agent; (3) Subagent; and (4) Transaction broker. Source: SL 1998, ch…

Any licensee representing a seller or landlord has the following duties and obligations: (1) To perform the terms of the written agreement made with the client; (2) To exercise reasonable skill and care for the client; (3) To promote the interest of the client with the utmost goo…

Without the express written authority of the seller or landlord, no licensee acting as a seller's or landlord's agent may disclose any confidential information about the client unless disclosure is required by statute or rule or failure to disclose the information would constitut…

No licensee acting as a seller's or landlord's agent owes any fiduciary duty or obligation to a customer. A licensee shall provide disclosure of all adverse material facts known by the licensee to any customer. No seller's or landlord's agent owes any duty to conduct an independe…

No licensee representing a seller or landlord has a duty to investigate, volunteer, or disclose information regarding a registered sex offender residing on or near the property. Source: SL 2000, ch 196 , § 1.

A seller's or landlord's agent may show alternative properties not owned by the client to prospective buyers and may list competing properties for sale or lease without breaching any duty or obligation to the client. Source: SL 1998, ch 229 , § 12.

Any licensee representing a buyer or tenant has the following duties and obligations: (1) To perform the terms of any written agreement made with the client; (2) To exercise reasonable skill and care for the client; (3) To promote the interest of the client with the utmost good f…

Without the express written authority of the buyer or tenant, no licensee acting as a buyer's or tenant's agent may disclose any confidential information about the client unless disclosure is required by statute or rule or failure to disclose the information would constitute misr…

No licensee acting as a buyer's or tenant's agent owes any fiduciary duty or obligation to a customer. A licensee shall provide disclosure of all adverse material facts known by the licensee to any customer. No buyer's or tenant's agent owes any duty to conduct an independent inv…

No licensee representing a buyer or tenant has a duty to investigate or volunteer information regarding a registered sex offender residing on or near the property. However, upon inquiry by the licensee's client, the licensee representing a buyer or tenant shall disclose to the cl…

A buyer's or tenant's agent may show properties in which the client is interested to other prospective buyers or tenants without breaching any duty or obligation to the client. This section does not prohibit a buyer's or tenant's agent from showing competing clients the same prop…

Each member of the commission shall be appointed for a term of three years. Any member appointed to the commission prior to July 1, 2005, shall serve the four-year term to which the member was originally appointed. Any member appointed to the commission after July 1, 2005, shall …

A licensee may act as a limited agent only with the informed written consent of all parties to the transaction. A limited agent is an agent for both the seller and the buyer and has the following duties and obligations: (1) To perform the terms of any written agreement made with …