If you are selling your South Dakota home, you know that the process can be arduous. Legislators in Pierre have added to the paperwork aspects of your task by requiring that you disclose, in writing, various property defects that could affect your home and property's value. Nevertheless, there's value in advising buyers of issues from a busted plumbing system to an unsteady foundation, as discussed in this article. If you're selling your South Dakota home, what must you disclose, and when?
The legal basis for South Dakota's disclosure requirement is South Dakota Stat. § 43-4-37 et seq., which mandates that sellers of residential real property "furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer." Moreover, a seller who becomes aware of any other conditions requiring disclosure between giving the buyer the statement and closing on the transaction must amend that statement.
In some states, real estate agents and attorneys are left to their own devices to draft disclosure forms that fit the legislation. In South Dakota, the legislature has done this work already, codifying the entire disclosure form in South Dakota Stat. § 43-4-44.
You might want to provide prospective buyers with the completed form sooner rather than later, given that buyers can terminate the sale within three days of receipt of the disclosure statement or amendment, under South Dakota Stat. § 43-4-39.
The South Dakota Department of Labor and Regulation has created a standard disclosure form mirroring the language of the statute, which that you, as a home seller, must fill out. You'll see that you must certify that the information presented is accurate as of the date of the form, and that the buyer must also sign the form (as proof that of having actually received it).
The form has over 100 questions divided into different sections. First, you will answer questions about the property itself—such as its address, how long you've owned it, whether there have been boundary surveys, and whether you are aware of any easements or liens on it.
Next, you'll answer questions about the condition of various aspects of the home: its roof, attic, plumbing, basement, and sewers, to name a handful. For each, you must state—by checking "Yes", "No", or "Do Not Know," or "N/A" (not applicable)—whether there are any material defects in that element of the home.
Importantly, the form also contains an "Other" clause; a catchall, asking "Are you aware of any other material facts which have not been disclosed on this form?". This signals that your task is to make full disclosure to the buyer, not hide behind any missing question on the form.
The form encourages sellers to attach additional information or pages, should you need to explain any responses in more detail. This can be especially useful if you want to alert potential buyers to a known defect (and thus comply with the statute), but note that the defect is relatively minor (and thus reassure the buyer).
Every seller wants to make the house seem as beautiful and perfect as possible, in order to fetch the highest possible price. But South Dakota draws a line between painting your walls with a fresh coat before an open house, and deliberately lying on your disclosure statement.
According to South Dakota Stat. § 43-4-42, a seller who makes misrepresentations or omissions on a disclosure statement "is liable to the buyer for the amount of the actual damages and repairs suffered...as a result of the violation or failure." Not only that, but if the buyer sues, "the court may award costs and attorney fees to the prevailing party." In plain English, this means that not only would you need to reimburse the buyer for the costs of remediation, but could also end up paying your buyer's attorney if the buyer successfully sues you! Legal fees can be significant, thus this serves as both a warning and punishment to sellers who attempt to act in bad faith.
By the same token, the legislature has protected you from liability for any defect that you disclose. South Dakota Stat. § 43-4-40 states that home sellers are not liable for a defect or other condition in the property if they truthfully complete the disclosure statement. The legislators are serious about your truthfulness, though, and require sellers to "make each disclosure in good faith."
In short, you are better off making the necessary disclosures in a full and forthright manner, rather than letting your buyer discover problems down the road and begin pointing fingers in your direction.