Many tenants who sign a lease for their apartment or rental unit plan to stay for the full amount of time required in the lease, such as one year. But despite your best intentions, you may want (or need) to leave before your lease is up—for example, if you’re a student at the University of South Dakota and only want to stay in your apartment for the period of time that school is in session. Or perhaps you’re moving in with your boyfriend or girlfriend. Sometimes, you may need to move in order to be closer to your new job or an elderly parent who needs your help.
Leaving before a fixed-term lease expires without paying the remainder of the rent due under the lease is called breaking the lease. Here’s a brief review of tenant rights in South Dakota to break a lease without further liability for the rent.
Tenant Rights and Responsibilities When Signing a Lease in South Dakota
A lease obligates both you and your landlord for a set period of time, usually a year. Under a typical lease, a landlord can’t raise the rent or change other terms, until the lease runs out (unless the lease itself provides for a change, such as a rent increase mid-lease). A landlord can’t force you to move out before the lease ends, unless you fail to pay the rent or violate another significant term, such as repeatedly throwing large and noisy parties. In these cases, landlords in South Dakota must follow specific procedures to end the tenancy. For example, your landlord must give you three days’ notice to pay the rent or leave (South Dakota Codified Laws Ann. § 21-16-1(4) and 21-16-2) before filing an eviction lawsuit. If you have caused substantial damage to the property, your landlord may give you an unconditional quit notice, giving you three days to move out. (S.D. Cod. Laws. §§21-16-1, 21-16-2).
Tenants are legally bound to pay rent for the full lease term, typically one year, whether or not you continue to live in the rental unit—with some exceptions, as follows.
When Breaking a Lease Is Justified in South Dakota
There are some important exceptions to the blanket rule that a tenant who breaks a lease owes the rent for the entire lease term. You may be able to legally move out before the lease term ends in the following situations.
You Are Starting Active Military Duty
If you enter active military service after signing a lease, you have a right to break the lease under federal law. (War and National Defense Servicemembers Civil Relief Act, 50 App. U.S.C.A. §§ 501 and following.) You must be part of the “uniformed services,” which includes the armed forces, commissioned corps of the national Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard. You must give your landlord written notice of your intent to terminate your tenancy for military reasons. Once the notice is mailed or delivered, your tenancy will terminate 30 days after the date that rent is next due, even if that date is several months before your lease expires.
The Rental Unit Is Unsafe or Violates South Dakota Health or Safety Codes
If your landlord does not provide habitable housing under local and state housing codes, a court would probably conclude that you have been “constructively evicted;” this means that the landlord, by supplying unlivable housing, has for all practical purposes “evicted” you, so you have no further responsibility for the rent. South Dakota law (S.D. Codified Laws Ann. § 43-32-9) sets specific requirements for the procedures you must follow before moving out because of a major repair problem. The problem must be truly serious, such as the lack of heat or other essential service.
Your Landlord Harasses You or Violates Your Privacy Rights
South Dakota does not have a state law that specifies the amount of notice your landlord must give you to enter rental property. If your landlord repeatedly violates your rights to privacy, or does things like removing windows or doors, turning off your utilities, or changing the locks, you would be considered “constructively evicted,” as described above; this would usually justify you breaking the lease without further rent obligation.
Landlord’s Duty to Find a New Tenant in South Dakota
Landlords in most states (for example, Arizona) must make a reasonable effort to re-rent their units when a tenant breaks a lease, rather than charge the tenant for the total remaining rent due under the lease. At the opposite extreme, in a handful of states, such as Georgia, landlords do not have the same responsibility to “mitigate damages” by trying to rent their property reasonably quickly and keeping their losses to a minimum if you move before a lease ends. In South Dakota, however, the law is unclear or courts have been divided on the issue of the landlord’s responsibility to minimize losses when a tenant breaks a lease.
If you live in South Dakota and want to break your lease, but don’t have a legally justified reason, such as one of those described above, try to work something out with your landlord. Don’t just move out and hope your landlord gets a new tenant quickly and doesn’t charge you for the remaining time on your lease. Provide your landlord as much notice as possible and write a sincere letter explaining why you need to leave early. Ideally, you can offer your landlord a qualified replacement tenant with good credit and references, to sign a new lease.
But keep in mind, that if the landlord doesn’t agree to let you off the hook, you may be liable for paying rent for the remainder of your lease, depending on the situation and the particular court hearing the case. This could be a substantial amount of money if you leave several months before your lease ends. Your landlord will probably first use your security deposit to cover the amount you owe. But if your deposit is not sufficient, your landlord may sue you, probably in small claims court where the limit is $12,000 in South Dakota.
More Information on Tenant Rights to Break a Lease
Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart (Nolo) provides extensive legal and practical advice that every tenant needs, from move in to move out, including how to get your landlord to cancel your lease, plus dozens of forms and sample letters.
More Information on Landlord-Tenant Law in South Dakota
To learn more about landlord-tenant laws in your state, see the State Landlord-Tenant Laws section of the Nolo site.