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Filing a mechanics lien in South Dakota is a pretty straight-forward procedure, as far as mechanics lien procedures go. The state’s preliminary notice is conditional on whether a Notice of Commencement has been filed (which is probably less than likely), and its mechanics lien deadline is easy to calculate and applies to everyone on the project just the same.
The Conditional Preliminary Notice in South Dakota
Personally, I don’t like states like South Dakota, where the requirement to send a preliminary notice is conditioned upon whether some other document was filed by some other party. The problem with these laws is that subcontractors and suppliers rarely have the knowledge as to whether these documents were ever filed.
Despite my personal feelings about this, South Dakota has a preliminary notice requirement that need only be met if the prime contractor files a “Notice of Commencement,” noting the commencement of the construction project and designating thereupon the identity and mailing address of the prime contractor and the property owner.
One good feature of South Dakota’s law is that if a Notice of Commencement is filed, it must also be posted up at the jobsite for all to see. This is terrific for subcontractors who spend work days on-site, but it does little to help the supplier who may be states away.
If a Notice of Commencement is filed, all sub-subcontractors and suppliers to subcontractors must deliver a Preliminary Notice to the property owner and the prime contractor within 60 days of last furnishing labor or materials to the project. If a Notice of Commencement is not filed, there issn’t a notice requirement in South Dakota.
It is a good practice to always send the preliminary notice in South Dakota because you just never know for sure whether a Notice of Commencement was filed, and it’s not worth the risk. As a practical matter, however, these Notices of Commencement are pretty rare, and it’s likely that your project doesn’t include one.
Filing A South Dakota Mechanics Lien
To balance the complexity of the on-again off-again preliminary notice requirement in South Dakota, the mechanics lien filing period is quite straight forward.
In South Dakota, mechanics liens must be filed within 120 days from the party’s last furnishing of labor or materials to a construction project. This 120 day lien filing period applies on absolutely every private construction project, regardless of notices filed, the contractor’s or supplier’s tier, or any other factors. All parties, therefore, will want to file their mechanics lien within this 120 days period.
The mechanics lien is effective for a very long time in South Dakota. In contrast to a state like California where the mechanics lien is only effective for 90 days, a South Dakota mechanics lien is effective for 6 years! After that, it must be enforced. It’s a good practice, of course, to enforce your claim before that 6 year deadline.