South Dakota Lien Waiver Rules
- Rules At A Glance
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No Specific Form
South Dakota does not require that lien waivers follow any specific form in order to be effective.
Notarization Not Required
South Dakota lien waivers do not need to be notarized in order to be effective.
Cannot Waive Rights in Contract
The law is not clear in South Dakota, and while there is no specific statutory prohibition on waiving future lien rights in contract, dicta in a South Carolina Supreme Court case seems to say that waivers unrelated to payment are not allowed.
Can Waive Rights Before Payment
South Dakota law is not clear about lien waivers prior to payment, but case law and statutory law seems to allow for waiving lien rights for less than full value, or pursuant to endorsing a joint check even if payment is not actually received.
South Dakota lien waivers are mostly unregulated. And, while this means that a lien waiver form can say pretty much anything, it doesn’t mean that anything goes with respect to timing.
South Dakota law does not specify exactly what a lien waiver must say in order to be effective, and does not provide lien waiver form templates that construction participants can use to make sure the waiver is valid. This means that parties on a South Dakota construction project, have the freedom to choose the exact format and language of lien waivers – which also means that a South Dakota lien waiver can include language that waives more than a party may be intending to waive.
There are, however, some probable limitations on how and when contractors, subcontractors, and suppliers can waive their lien rights in South Dakota. While South Dakota statutory law is mostly silent with respect to lien waivers, and what is allowed, there are some court cases that provide potential guidance. While not directly saying so in the holding, there are South Carolina Supreme Court cases in which dicta (or the language of the court in making it’s decision) seems to say that waivers unrelated to payment are not allowed.
In South Dakota, like everywhere, construction stakeholders must be careful when exchanging lien waivers. The right file a mechanics lien is powerful, and though lien waivers are exchanged routinely, they can be consequential when the mechanics lien right is lost. The resources, forms, guides, and frequently asked questions about South Dakota Lien Waivers on this page will help you get it right.
