Selling a House in South Dakota

Selling a house is one of the most significant legal transactions you'll ever participate in. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In South Dakota, real estate agents may act as a seller's agent, a buyer's agent or a limited agent, which means that the real estate agent has agency agreements with both the seller and the buyer; such a situation is possible only with both parties' consent. A real estate broker or agent can also act as a "transaction broker," which means that the agent assists with a real estate transaction, but does not have an agency relationship with either the seller or the buyer.

Under South Dakota law, at your first substantive meeting with a real estate agent, you will be given a disclosure form, which explains the various agency relationships possible with a real estate agent. The form is not a contract, and you will have to sign a listing agreement in order for the real estate agent to legally represent you in the sale of your home. Real estate agents have what's called a "fiduciary duty" to the party who they are representing, in this case, the seller, and this means that a real estate agent owes specific duties under the law to the seller. In addition to duties or obligations that are stated in a listing agreement or other contract, a fiduciary's duties include:

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care and diligence
• Accounting in dealings with the seller

In South Dakota, you must complete a property condition disclosure statement and give it to the buyer before the buyer makes a written offer to purchase your home.

You are required to disclose the following:

• Lot and title information
• Structural information
• Systems and utilities information
• Hazardous conditions
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 for homes built prior to 1978)
• Other information, including whether a death or felony occurred on the property or street, and if so, what the maintenance arrangement is, information about the water supply and what fixtures will stay with the house

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called a "purchase agreement," which states the finalized terms and conditions for the sale.

You won't have very long to decide whether or not to take the offer or propose a counteroffer so it's important to be informed ahead of time.

Common counter-proposal items include:

• A higher purchase price
• A higher deposit
• Giving buyer less time to remove contingencies
• Excluding certain items from the sale
• Providing you move in time to vacate the house after the sale is closed
• A clause making it a contingency that your attorney approve the contract
• A "liquidated damages clause" that details how much money the buyer will owe you if the buyer backs out of the deal for reasons other than the contingencies listed in the contract

Legal Title Issues

Your South Dakota real estate lawyer or title company will investigate the legal title of the property you want to sell, and may find issues you'll need to understand.

In South Dakota, for example, an implied easement may be present where a person grants lands to which there is no accessible right-of-way except over her or his land or retains land that is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of accessing the property, and it is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

Your property may also be subject to a "lien," which is a charge on the property to satisfy a debt or other obligation owed by the current owner of the property. A lien encumbers property as long as it exists and has been recorded in the public records.

In South Dakota, liens on a piece of property may include:

• Mortgages
• Land sale contracts
• Contracts for deed
• Involuntary liens (includes workmen's liens, liens for unpaid taxes and liens filed by creditors holding judgments against the owner)

Closing Costs

In South Dakota, you can expect to pay for some or all of the following charges - called "closing costs"-at the time you sell your home:

• Broker's commission
• Survey
• Title insurance
• Recorded release of mortgage
• Transfer taxes
• Attorney's fee
• Home inspections

Specific Performance

In South Dakota, a seller who agrees to sell a particular property must do so unless the buyer fails to meet all the terms of the purchase agreement. This is called "specific performance," which is a legal action to compel performance of a contract. For this contract remedy, a court can order the parties to complete the contract. The buyer must then deliver the purchase price and the seller must then deliver the deed. If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.