Title 44 — LIENS
16 chapters · 214 sections in this title.
SDCL § 44-9-1 Persons entitled to lien--Property affected--Extent of lien--Exceptions
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Whoever shall, at the request of the owner or the duly authorized agent or representative of the owner, or of any contractor or subcontractor, furnish skill, labor, services, including light, power, or water, equipment, or materials for the improvement, development, or operation …
SDCL § 44-9-10 Materials or services furnished to contractor--Lien account and notice of claim furnished to owner--Withholding of payments from contractor to protect lien claimants
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Any person furnishing any of the items for which a lien may be claimed under the provisions of § 44-9-1 under a contract, either express or implied between the owner of the property or his duly authorized agent or representative, and any contractor working upon or about such prop…
SDCL § 44-9-11 Lien account and notice of claim--Service on owner of property--Copy furnished to contractor--Assent of contractor to claim--Payment by owner--Deduction from amount due contractor
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Whenever any such account and notice is served upon the owner of the property or his duly authorized agent or representative, he shall furnish his contractor with a copy of the same, and if such contractor shall not within fifteen days after the receipt of such account and notice…
SDCL § 44-9-12 Amount due from contractor to creditor--Recovery from owner
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The amount which may be due from any contractor to his creditor may be recovered from said owner by the creditor of said contractor, in any action at law, to the extent and value of any balance due by the owner to his contractor under the contract with him, at the time of the not…
SDCL § 44-9-13 Misappropriation of funds by contractor, subcontractor, or supplier--Theft
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Any contractor, subcontractor, or supplier on any improvement of real estate, mines, or public utilities within the purview of this chapter who knowingly uses more than five hundred dollars of the proceeds of any payment made to him on account of such improvement by the owner of …
SDCL § 44-9-14 Demand of owner for lien accounts--Service on persons claiming liens--Owner defined
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The owner, by serving written request within fifteen days after the completion of the contract, may require any person who may have a lien under the provisions of this chapter, to furnish him an itemized and verified account of his lien claim, the amount thereof, and his name and…
SDCL § 44-9-15 Lien ceases without filing of required lien statement--Place of filing of statement
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The lien shall cease at the end of one hundred twenty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery, unless within such period a statement of the claim therefor be filed with the register of deeds of the county…
SDCL § 44-9-16 Lien statement by lien claimant--Verification--Contents
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Such statement shall be made by or at the instance of the lien claimant, shall be verified by the oath of some person shown by such verification to have knowledge of the facts stated, and shall set forth: (1) A notice of intention to claim and hold a lien, and the amount thereof;…
SDCL § 44-9-17 Lien statement by lien claimant--Mailing of copy to property owner condition precedent to filing--Post office receipt attached to statement
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Before filing such lien statement, the person claiming the lien shall mail to the property owner at his last known post office address, by registered or certified mail, a copy of such lien statement and the post office receipt for such mailing shall be attached to the lien statem…
SDCL § 44-9-18 Lien statement by lien claimant--Duties of register of deeds--Filing in numerical order--Contents of record--Entry upon mortgage or lien index
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The register of deeds shall file such statement or lien in numerical order and enter the same upon a register to be kept for that purpose containing the name of the owner of the property against whom the lien is claimed, date of filing, amount, description of the property affecte…
SDCL § 44-9-19 Fees for the filing, indexing or assignment of liens
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The register of deeds shall charge a fee in accordance with subdivision 7-9-15(3) for the filing and indexing of any lien or assignment of the lien under the provisions of this chapter. However, no fee may be charged for the satisfaction of the lien. Source: SDC 1939, § 39.0721; …
SDCL § 44-9-2 Construction of improvements with knowledge of owner subjects land to lien--Exceptions
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When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior encumbrancers or lienors shall be deemed to have authorized such improvements, insofar as to subject their interests to the liens therefor; provided…
SDCL § 44-9-20 Claims against two or more buildings or improvements--Exception for condominiums--General contract with owner--Election of lien claimant
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Except as in the case of condominiums under the provisions of § 43-15A-29 , a lien holder who contributes to the erection, alteration, removal, or repair of two or more buildings or other improvements situated upon or removed to one lot, or upon or to adjoining lots, under or pur…
SDCL § 44-9-21 Manner of satisfying liens--Execution and delivery of satisfaction to owner of property--Contents--Acknowledgment--Record of satisfaction--Cancellation of lien
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Whenever a lien has been claimed by filing the same in the office of the register of deeds and it is afterward satisfied by payment, foreclosure, compromise, or other method, the creditor shall execute and deliver to the owner of the property a satisfaction describing the lien by…
SDCL § 44-9-22 Neglect of lien holder to satisfy lien on demand--Damages--Attorney fees--Additional penalty
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If any holder of a lien under the provisions of this chapter shall neglect to execute and deliver such satisfaction within ten days after written demand therefor by the owner of the property or any person interested therein, when such lien has in fact been satisfied as provided i…
SDCL § 44-9-23 Enforcement of lien--Venue of action--Commencement and conduct of proceedings
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The lien may be enforced by action in the circuit court of the county in which the improved premises or some part thereof are situated, or of the county to which such county is attached for judicial purposes, or, if claimed under subdivision 44-9-1(2), of any county through or in…
SDCL § 44-9-24 Six-year limitation to enforce lien--Cancellation of expired lien
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No lien may be enforced in any case unless the holder of the lien asserts the lien, either by complaint or answer, within six years after the date of the last item of the lien holder's claim as set forth in the filed and entered lien statement. No person is bound by the judgment …
SDCL § 44-9-25 Parties to action to foreclose lien--Admission of lien holder not named as defendant--Joinder of plaintiffs
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The action to foreclose the lien may be commenced by any lien holder who has filed his lien statement as required in this chapter, and all other such lien holders who are not joined with him as plaintiffs shall be made defendants. Any such lien holder not named as a defendant may…
SDCL § 44-9-26 Forfeiture of lien for failure to commence suit upon demand--Cancellation by register of deeds
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Upon written demand by the owner, the owner's agent, or contractor, served on any person holding a lien, requiring the person to commence suit to enforce the lien, the person shall commence suit within thirty days after such service or the lien is forfeited. The register of deeds…
SDCL § 44-9-27 Action to enforce lien--Commencement--Issuance of summons--Filing of complaint
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The action shall be commenced by issue of a summons and filing complaint in the office of the clerk of courts. Source: SDC 1939, § 39.0716.
SDCL § 44-9-28 Notice of pendency of action to enforce lien--Necessity for filing--Intervention of other lien claimants
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At the beginning of the action the plaintiff shall file for record with the register of deeds of the county in which the action is pending and of the several counties into which the utility extends, if the lien is claimed under subdivision § 44-9-1(2), a notice of the pendency th…
SDCL § 44-9-29 Enforcement of lien--Application to make all interested persons parties--Order of court, publication--Rights barred by failure to appear and assert claim
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Upon the application of the plaintiff, or anyone claiming an interest in the property, the court may make an order requiring all persons claiming any interest in the property or lien thereon to appear in the action, either by complaint in intervention or by answer, and to set up …
SDCL § 44-9-3 Vendee authorized to improve land sold under executory contract--Forfeiture or surrender of contract after attachment of liens for improvements--Liability of vendor
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Whenever land is sold under an executory contract authorizing the vendee to improve the same, and such contract is forfeited or surrendered after liens have attached by reason of such improvements, the title of the vendor shall be subject thereto, but he shall not be personally l…
SDCL § 44-9-30 Consolidations of actions for foreclosure of liens upon same property--Order of court--Rights of parties protected
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If more than one action shall be commenced in good faith for foreclosure of liens upon the same property, all shall be consolidated and tried as one, under such order of the court as may best protect the rights of all parties concerned. Source: SL 1913, ch 263 , § 11; SL 1917, ch…
SDCL § 44-9-31 Pleadings in action to foreclose lien--Bill of particulars to be attached, verification--Further account may be required by court--Pleading stricken and claim disallowed for failure to file particulars
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Each lien holder shall attach to and file with his complaint or answer a bill of the items of his claim, verified by the oath of some person having knowledge thereof, and shall file such further and more particular account, as the court may at any time direct. Upon his failure to…
SDCL § 44-9-32 Pleadings in action to foreclose lien--Denial of averments of answer
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All averments of the answer shall be deemed denied without further pleading. Source: SL 1913, ch 263 , § 10; SL 1917, ch 295 , § 3; RC 1919, § 1652; SDC 1939, § 39.0716.
SDCL § 44-9-33 Foreclosure of liens--Applicability of laws governing civil procedure--Exception
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All provisions of Title 15 shall be applicable to foreclosure actions under this chapter, except where a different intention plainly appears from the provisions of this chapter. Source: SDC 1939, § 39.0716.
SDCL § 44-9-34 Foreclosure of liens--Appointment of receiver on request of majority of lien holders, parties to action
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Whenever action has been commenced for the foreclosure of liens, under this chapter, and a majority of the lien holders, parties to such action, shall by motion request the appointment of a receiver, the court may appoint a receiver to take possession of all the property covered …
SDCL § 44-9-35 Foreclosure of liens involving public utility--Receivership created instead of directing sale of property
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In all cases of liens arising under the provisions of subdivision § 44-9-1(2) a receivership may be created in the first instance instead of directing a sale of the property. Source: SL 1913, ch 263 , § 15; RC 1919, § 1657; SDC 1939, § 39.0717.
SDCL § 44-9-36 Receiver appointed in foreclosure proceeding--Issuance of certificates for charges necessary to protect property as provided in judgment
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The court may authorize such receiver to issue receiver's certificates to persons furnishing services, supplies, or equipment only to the extent necessary for preservation of such property, and for taxes, insurance, and similar charges necessary to protection of the property. Suc…
SDCL § 44-9-37 Compensation of receiver fixed by court
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The compensation of the receiver shall be fixed at a reasonable daily rate by order of the court for each day that the receiver is actually engaged in the performance of his duties. Source: SL 1909, ch 51 , § 8; SL 1915, ch 243 , § 8; RC 1919, § 1638; SDC 1939, § 39.0717; SL 1979…
SDCL § 44-9-38 General power of court to appoint receiver not abridged
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Nothing in §§ 44-9-34 to 44-9-37 , inclusive, shall abridge the power of the court otherwise to appoint a receiver under the provisions of chapter 21-21 . Source: SDC 1939, § 39.0717.
SDCL § 44-9-39 Postponement of trial of foreclosure action--Omitted parties--Lien claim not due--Allowance of present worth of claim
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If upon the trial of such action, or at any time before the rendition of final judgment therein, it shall appear to the satisfaction of the court that a proper party who may still be brought in has been omitted, or that any party then entitled to answer has not yet appeared, or t…
SDCL § 44-9-4 Improvement not authorized by owner of land--Notice of nonliability
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Any person who has not authorized the improvement may protect his interests from such liens by serving upon the persons doing the work or otherwise contributing to such improvement, within five days after knowledge thereof, written notice that the improvement is not being made at…
SDCL § 44-9-40 Judgment for lien holder--Amount demanded and proved--Costs fixed by court--Excluded from lien of other property
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Judgment shall be given in favor of each lien holder for the amount demanded and proved by him, with costs and disbursements to be fixed by the court at the trial, and such amount shall not be included in the lien of any other party. Source: SL 1913, ch 263 , § 13; RC 1919, § 165…
SDCL § 44-9-41 Foreclosure of lien--Taxation of costs--Sum allowed for preparation and filing of lien statement and account
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The clerk of the courts shall tax the same costs as are allowed in foreclosures of real estate mortgages. The lien claimant shall be entitled to tax as costs, in addition to all other costs allowed by law, the sum of five dollars for the preparation of the lien statement and acco…
SDCL § 44-9-42 Foreclosure of lien--Allowance of fees and expenses, attorneys, receivers, exception
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The court shall have authority in its discretion to allow such attorney's fees and receiver's fees and other expenses as to it may seem warranted and necessary according to the circumstances of each case, and except as otherwise specifically provided in this chapter. Source: SDC …
SDCL § 44-9-43 Payment of judgment by lien holder personally indebted for amount of lien--Subrogation to rights of person so paid
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If, after judgment, a lien holder who is personally indebted for the amount of any lien so adjudged in favor of another shall pay such indebtedness, he shall thereby become subrogated to the rights of the person so paid. Source: SL 1913, ch 263 , § 13; RC 1919, § 1655; SDC 1939, …
SDCL § 44-9-44 Judgment of sale to satisfy all liens--Manner of sale--Rights of persons which are paramount to liens--Proceeds of sale, distribution by officer making sale
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The judgment shall direct a sale of the real estate or other property for the satisfaction of all liens charged thereon, and the manner of such sale, subject to the rights of all persons which are paramount to such liens or any of them. It shall require the officer making such sa…
SDCL § 44-9-45 Judgment of sale to satisfy all liens--Right of redemption--Leasehold having not more than two years to run--Interest of vendee under executory contract of sale
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If the estate sold be a leasehold having not more than two years to run, or be the interest of a vendee under an executory contract of sale the conditions whereof are to be performed within the same period, no redemption shall be allowed; in all other cases the right of redemptio…
SDCL § 44-9-46 Sale of improvements to satisfy all liens--Severance and removal from land
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If, without material injury to the building or other improvement to which the lien holder has contributed, the same can be severed and removed from the land, the judgment, in the discretion of the court, may direct the sale of such improvement, with the privilege to the purchaser…
SDCL § 44-9-47 Judgment and sale to satisfy all liens--Necessity for report to and confirmation by court
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No sale shall be deemed complete until reported to and confirmed by the court. Source: SL 1913, ch 263 , § 14; RC 1919, § 1656; SDC 1939, § 39.0720.
SDCL § 44-9-48 Judgment and sale to satisfy all liens--Sale not confirmed by court--Resale--Receiver to handle property
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If in any case the sale be not confirmed, the court may direct a resale, or if deemed best may appoint a receiver to lease or otherwise handle the property under its direction, in the interests of all persons concerned. Source: SDC 1939, § 39.0720.
SDCL § 44-9-49 Failure to comply with chapter does not affect right of person to recover, in civil action, from party with whom he contracted
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No failure to comply with any of the provisions of this chapter shall affect the right of any person to recover, in an ordinary civil action, from the party with whom he has contracted. Source: SL 1913, ch 263 , § 12; RC 1919, § 1654; SDC 1939, § 39.0716.
SDCL § 44-9-5 Homestead right--Lien does not affect exemption
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The lien shall not extend to nor affect any rights in any homestead so far as the same is exempt from levy and sale on execution. Source: SL 1913, ch 263 , § 2; RC 1919, § 1644; SL 1921, ch 280 ; SDC 1939, § 39.0702.
SDCL § 44-9-50 Notice of project commencement--Time of filing--Fees--Register of deeds to maintain index
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Any owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner, may file with the register of deeds of the county in which the improved premises are situated a notice of project commencement. The notice of proj…
SDCL § 44-9-51 Contractor's name and address and location notice to be posted--Contents of location notice
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Any person filing a notice of project commencement shall post the name and address of the contractor and location notice at the job site. The location notice shall contain the following statement: The contractor on this project has filed a notice of project commencement at the co…
SDCL § 44-9-52 Notice of project commencement does not affect title, liens allowable, or mortgage
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The filing of a notice of project commencement does not constitute a cloud, lien, or encumbrance upon, or defect to, the title of the real property described in the notice, nor does it alter the aggregate amounts of liens allowable by applicable statute, nor does it affect the pr…
SDCL § 44-9-53 Notice of furnishing labor or materials required before lien extended--Notice recipients--Time for filing--Contents of notice--Exemption
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If the provisions of §§ 44-9-50 and 44-9-51 are first invoked, no sub - subcontractor or supplier to subcontractors is entitled to extend, pursuant to § 44-9-15 , a lien created pursuant to subdivision 44-9-1(1), unless the sub - subcontractor or supplier has first provided notic…
SDCL § 44-9-6 Contribution under contract with owner--Agreed price--Extent of lien
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If the contribution be made under a contract with the owner and for an agreed price, the lien as against him shall be for the sum so agreed upon together with the cost of any additional material or work agreed upon, otherwise, and in all cases as against others than the owner, it…