Real estate law covers many issues related to the purchase and sale of residences, commercial buildings, and real property. Purchasing a home or a commercial property is likely one of the most important decisions and financial commitments an individual will make in their lifetime.
Because of this, it is essential for an individual to know what exactly they are purchasing and the consequences of that purchase. This includes the land boundaries, the title, and the condition of the property.
Real estate laws provide protections for many parties to real estate transactions, including:
- Sellers;
- Buyers;
- Land owners;
- Contractors;
- Real estate agents; and
- Builders.
In some cases, a dispute may arise between the parties to a real estate transaction. Real estate litigation may include issues such as:
There are differences between state real estate laws and federal laws that apply to real estate issues. State real estate laws regulate real property transactions as well as landlord-tenant relationships. Federal laws provide protections against discrimination pursuant to the Fair Housing Act as well as protections against environmental violations.
What are Property Mortgages? How Do They Affect My Rights?
When most people purchase a home or a commercial property, they obtain a mortgage. A mortgage is a real estate lien on an individual’s property. It is placed on the property by the bank or other financial institution that provided the funds.
A mortgage is used to allow individuals who do not have the cash on hand to purchase a property the opportunity to do so. There are two parts to a mortgage — the promissory note and the deed of trust.
A promissory note is a contract that provides that the borrower agrees to repay the lender that provided the funding for the purchase even if they sell the property. The deed to trust acts as a lien on the property and guarantees that the lender will get the money back that they provided, even if the borrower does not pay it. Should the borrower fail to make payments on their mortgage, the lender has the right to begin foreclosure proceedings.
What are Some Common Real Estate Law Disputes in South Dakota?
A real estate dispute, also known as a property dispute, can arise for many reasons. Common reasons in South Dakota are the same as those across the country.
Real estate disputes can include a wide range of issues and can be major or minor issues. In addition, real estate disputes can involve almost any individual with an interest in the property, such as:
- The property owner;
- Neighbors;
- Landlords and Tenants;
- Homeowner Associations (HOAs);
- Trespassers;
- Family Members;
- Builders and Developers;
- Government Agencies; and
- Municipalities.
Some of the most common property disputes include:
One of the more common types of property disputes are boundary disputes. A common boundary dispute occurs when one homeowner builds a fence in their backyard and accidentally places that fence over the property line into their neighbor’s yard.
In many cases, a boundary dispute can be resolved by having a proper survey conducted on the property that is indispute. Other types of property issues may be more complex, especially those involving property ownership.
What are Some Consequences of South Dakota Real Estate Violations?
The consequences of real estate violations in South Dakota are similar to those in the rest of the nation. Consequences of a property dispute typically depends on the nature of the dispute and the jurisdiction in which it arises. Remedies may include:
- An injunction;
- A judicial sale;
- Monetary damages; and
- A quiet title action.
An injunction may be used to stop a neighbor from doing something with their property, such as burning trash, that affects an individual’s use and enjoyment of their own property. An injunction may also be called a cease and desist order. It is a court order that either requires an individual to take some action or stop them from continuing a specific activity.
In certain cases, a court may order a judicial sale of a property in order to remedy a situation. This is most commonly used in foreclosure situations when a homeowner has failed to make mortgage payments.
Monetary damages are awarded to cover losses an individual may have incurred as part of a property dispute. For example, if a neighbor constructs a fence that is over their property line and the property owner next door incurs expenses to have it removed, they may receive monetary damages.
In some cases, there may be issues with the chain of title to a property. In these cases, a quiet title action lawsuit can be used to determine the legal owner of the property.
Are There Any Unique Property Laws in South Dakota?
Yes, South Dakota law provides provisions regarding foreclosure proceedings in the state. As noted above, the mortgage contains the promissory note and the mortgage. If an individual fails to make mortgage payments, their lender will commence foreclosure proceedings.
In South Dakota, many mortgages contain provisions that require a lender to send the borrower a breach letter if they fall behind on payments. A breach letter notifies the borrower that their loan is in default. If the borrower does not cure the default, the lender may proceed with the foreclosure.
In a nonjudicial foreclosure in South Dakota, the lender must serve the borrower a notice of sale at least 21 days prior to the sale date. The lender is also required to publish a notice in the newspaper at least once a week for four successive weeks. Even if a lender begins a nonjudicial foreclosure, the borrower can require the lender to use a judicial foreclosure through the court system by filing an application in the appropriate court.
South Dakota laws do not provide the borrower with a right to cure a default and reinstate a loan prior to a foreclosure sale in a nonjudicial foreclosure. However, the mortgage contract may provide the borrower with reinstatement rights.
If an individual is facing a judicial foreclosure in South Dakota, they have the right to reinstate. If the borrower pays the reinstatement amount prior to the court entering a judgment in a judicial foreclosure, the court will dismiss the foreclosure action. If an individual reinstates after a judgment but prior to the sale, the court will stay, or postpone, the foreclosure action. If the borrower defaults again, the foreclosure may continue.
In South Dakota, an individual has either 1 year, 180 days, or 60 days to redeem their home following a foreclosure, depending on the circumstances. Typically, the borrower has 1 year to redeem their home after a foreclosure sale.
South Dakota also allows voluntary foreclosures. In these cases, the borrower and lender agree that the lender may take immediate possession of the property. By doing so, the borrower will forfeit the right to redeem the property and the lender will forfeit the right to obtain a deficiency judgement against the borrower.
Should I Hire a South Dakota Real Estate Law Attorney for Help?
Yes, it is essential to have the assistance of an experienced South Dakota real estate attorney for any real estate issues you may have in South Dakota. Real estate laws cover a vast range of topics and may be complex. In addition, they may vary by jurisdiction.
In some cases, you may be able to resolve issues with your neighbor by having a simple conversation. However, if a dispute arises that cannot be resolved with a conversation, it is important to have an attorney’s help.
For example, if you have any issues regarding the condition or boundary of your land, the title to your property, or mortgage issues, you should seek advice from an attorney. This is especially the case if another individual is claiming ownership of your property. In these cases, you should seek an attorney’s help as soon as possible.
Your attorney can review your dispute, research public records related to the property, and provide advice regarding the best way to resolve the dispute. If you are required to file a lawsuit to remedy the issue, your attorney will represent you during any court proceedings.
