Title 43 — PROPERTY

If a condition precedent requires the performance of an act wrong in itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the conditio…

Conditions imposing restraints upon marriage, except upon the marriage of a minor, or of the spouse of the person by whom the condition is imposed, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage.…

Conditions restraining alienation, when repugnant to the interest created, are void. Source: CivC 1877, § 200; CL 1887, § 2716; RCivC 1903, § 223; RC 1919, § 293; SDC 1939, § 51.0227.

A mere possibility, such as the expectancy of an heir apparent, is not deemed an interest of any kind. Source: CivC 1877, § 192; CL 1887, § 2708; RCivC 1903, § 215; RC 1919, § 285; SDC 1939, § 51.0222.

In respect to the time of enjoyment, an interest in property is either present or future. A present interest entitles the owner to the immediate possession of the property. A future interest entitles the owner to the possession of the property only at a future period. Source: Civ…

The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest within the meaning of this code. Source…

A future interest is either: (1) Vested; or (2) Contingent. Source: CivC 1877, § 185; CL 1887, § 2701; RCivC 1903, § 208; RC 1919, § 278; SDC 1939, § 51.0217.

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.

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, …

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,…

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.

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.

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, §§ …

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.

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 1…

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.

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.

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.

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 o…

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 th…

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.

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 secu…

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 .

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 …

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.…

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…

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 valu…

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 tru…

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, §…

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 …

It is NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES either party 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…

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 day…

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.

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.

The seller shall perform each act and make each disclosure in good faith. Source: SL 1993, ch 325 , § 5.

A transfer that is subject to §§ 43-4-37 to 43-4-44.1 , inclusive, is not invalidated solely because a person fails to comply with §§ 43-4-37 to 43-4-44.1 , inclusive. However, a person who intentionally or who negligently violates §§ 43-4-37 to 43-4-44.1 , inclusive, is liable t…

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…

The following form must be used for the property condition disclosure statement, with a designated space at the top of each page after the first page to write in the property address, and a designated space at the bottom of each page for each seller and buyer to initial: SELLER'S…

In attempting to sell a residential real property governed by a homeowners' association, the seller must furnish to a buyer before the buyer makes a written offer: (1) A disclosure that the property is governed by a homeowners' association; (2) A copy of the governing documents o…

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. …

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.

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, rega…

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,…

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 prop…

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.

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, inc…

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 …

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 docu…

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 prop…

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 no…