South Dakota Notice of Commencement
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South Dakota Notice of Commencement Overview

South Dakota

Notice of Commencement Requirement
Not Specifically Required, But May File
South Dakota doesn't specifically require that any party file a Notice of Commencement, so property owners and construction lenders do not have an obligation to do so. However, there are benefits to be gained by filing a Notice of Commencement, so it is generally a best practice for property owners or construction lenders as their agent, to do so.

South Dakota

Notice of Commencement Deadline
30 DaysIf Filed
There are generally no South Dakota notice of commencement deadlines for property owners and construction lenders because they do not have a NOC requirement. However, to the extent a notice of commencement is chosen to be filed, the notice must be filed within 30 days from the commencement of work on the property.

South Dakota

Notice of Commencement Requirement
Not Specifically Required, But May File
South Dakota doesn't specifically require that any party file a Notice of Commencement, so GCs do not have an obligation to do so. However, there are benefits to be gained by filing a Notice of Commencement, so it is generally a best practice for GCs to file a South Dakota Notice of Commencement.

South Dakota

Notice of Commencement Deadline
30 DaysIf Filed
There are generally no South Dakota notice of commencement deadlines for GCs because they do not have a specific NOC requirement. However, to the extent a GC chooses to file a notice of commencement, the notice must be filed within 30 days from the commencement of work on the property.

South Dakota

Notice of Commencement Requirement
None, But...
Subcontractors & Suppliers are not required nor allowed to file this notice in South Dakota. However, the filing of a Notice of Commencement can have an impact on certain parties' other preliminary notice requirements. preliminary notice.

South Dakota

Notice of Commencement Deadline
None
Subcontractors & Suppliers do not have a specific deadline to file a notice of commencement, as this document does not apply.

South Dakota’s mechanics lien laws, like only a few other states, specifically allows for a Notice of Commencement to be filed, but does not require that a Notice of Commencement filing is made. Despite the fact that a South Dakota Notice of Commencement is a voluntary filing, the decision whether or not to file an NOC has significant consequences for parties on a South Dakota construction project. In fact the filing of a South Dakota Notice of Commencement can create notice requirements for certain sub-tier parties that would otherwise not apply.

Many voluntary notice filings provide little benefit, whether to the filing party or anybody else. This is not necessarily the case with respect to a South Dakota Notice of Commencement, however. When an NOC is filed in South Dakota, it can modify sub-tier parties’ notice requirements, and because of that, impact mechanics lien rights. Accordingly, every participant on a construction project in South Dakota has an interest in the Notice of Commencement, and may have additional responsibilities and requirements because of it.

This means it’s very important for everybody who works on construction projects in South Carolina to have an understanding of what a Notice of Commencement is, why it matters, and whether or not one has been filed.

Generally, a Notice of Commencement is a form filed in the public records of a county to signify the beginning of a construction project. There are many reasons that a specific and defined start date for a project is worth having, in addition to the notice requirements that may arise because of the NOC. While Notice of Commencement filing and content requirements are generally similar throughout states in which they are required, South Carolina’s Notice of Commencement has some unique features. A South Dakota Notice of Commencement not only must be filed, but certain information contained on a “location notice” must also be posted at the job site itself.

The process is important, and when properly filed and posted a South Dakota Notice of Commencement has significant impacts on payment and lien rights and procedures – which will be discussed more below. A South Dakota GC fill out and file a Notice of Commencement directly with register of deeds in the county in which the project is located, or, of course, they can make the NOC process really easy by just filing the document using an online platform.

This page provides frequently asked questions, forms, and other helpful information about the South Dakota Notice of Commencement.

Video: What is a South Dakota Notice of Commencement?

Watch this short video that explains important Notice of Commencement requirements in easy to understand terms.

South Dakota Notice of Commencement FAQs

South Dakota mechanics lien law is complex. Filing and posting certain notices, like a Notice of Commencement, can have consequences for other parties' notice requirements and lien rights. In South Dakota, a Notice of Commencement must be both filed with the Register of Deeds in the county in which the project is located, and certain information must be posted on the job site itself. While the requirements related to filing the notice are only applicable to the property owner, the GC, or the property owner's agent, the notice affects requirements and rights for other participants on the job. Regardless of your role, you likely have questions about this notice process. Here are some common questions and answers.

For Property Owners, GCs, & Construction Lenders

Is a notice of commencement required in South Dakota?

No, there is no specific requirement to file a South Dakota Notice of Commencement.

In South Dakota, a Notice of Commencement is a voluntary filing, so no party is obligated to get an NOC filed. However, there are potential benefits to filing an NOC, and in South Dakota, “[a]ny owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner” is allowed to file a Notice of Commencement.

Choosing to file an NOC results in sub-subcontractors or suppliers to subcontractors being unable to file a statement of claim unless they first timely provide a notice of furnishing to the GC and the owner.

Is the property owner supposed to receive a South Dakota notice of commencement?

No. Unlike some other states in which a Notice of Commencement may be filed by the GC, South Dakota imposes no obligation to provide a copy of the notice to the property owner.

The notice may be filed by the property owner, the agent or representative of the owner, or the GC, and no delivery of the notice to any particular party is required. However, along with being filed in the county property records of the county in which the project is to take place, certain information must also by posted on the job site itself, which, presumably, would provide notice of the NOC’s filing to the property owner and other interested parties.

Who must file a South Dakota notice of commencement?

As noted above, no party “must” file a Notice of Commencement, but there may be benefits to doing so. If the decision is made to file a Notice of Commencement it may be filed by “[a]ny owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner.”

It is interesting to note that the language “duly authorized agent or representative” provides the opportunity to file an NOC to any party given the authority to make the filing by the owner. This may be used by a construction lender or other top of the chain interested party in an attempt to limit lien rights, or at least require sub-sub tier participants to provide a notice of furnishing.

When must a notice of commencement be filed?

South Dakota has strict deadlines for filing a Notice of Commencement despite the fact that the filing is voluntary.

If a Notice of Commencement is to be filed, the notice must be filed “within thirty days of the commencement of work.” Additionally, according to statute, there must also be certain information posted at the job site. The statute does not specify when the “location notice” must be posted on the job site, however. While it would likely be best practice to post the “location notice” at the job site commensurately with the recording of the Notice of Commencement with the register of deeds, it may be possible to post the job site notice at a slightly later date without invalidating a properly filed NOC.

If the 30-day deadline for filing the document is missed, however, the sub-tier notice requirements that would otherwise be imposed do not apply.

How is the notice of commencement filed?

South Dakota law requires that, when applicable, a South Dakota notice of project commencement must be filed “with the register of deeds of the county in which the improved premises are situated” and that the name and address of the contractor along with a “location notice” including specific wording must be  posted at the job site.

Accordingly, this means that (at least) two distinct steps must be undertaken:

1. Getting it Filed

South Dakota requires that the notice be filed with the register of deeds. A handy list of the recording offices for each South Dakota county, with contact information, can be found here.

Alternatively, you can also file your South Dakota Notice of Commencement electronically here.

2.  Post on Job Site

The second part of the requirement is that information must be posted at the job site. The “name and address of the contractor” and a “location notice” must be posted. The location notice must include the following statement verbatim: “The contractor on this project has filed a notice of project commencement at the county courthouse. Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 [requirement to provide a notice of furnishing] before filing liens in connection with this project.”

What information must be included in the notice of commencement?

In South Dakota, a Notice of Commencement must include the following information:

  1. The name and address of the person filing the notice of project commencement;
  2. The name and address of the owner or developer;
  3. A general description of the improvement; and
  4. The location of the project, including the legal description of the property.

Additionally, the “name and address” of the contractor must be posted at the job site, along with a “location notice” including the following specific language: “The contractor on this project has filed a notice of project commencement at the county courthouse. Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 before filing liens in connection with this project.”

Does the notice of commencement affect my lien rights or lien exposure?

The filing of a Notice of Commencement does not have any effect on a GC’s lien rights. However, it may have an impact on limiting lien exposure or liability.

If a notice of commencement is filed, the failure of a sub-subcontractor or supplier to a subcontractor to send a notice of furnishing will disallow those remote claimants from filing a lien statement of claim.

It is interesting to note that the specific statutory language differs a bit between statutory sections with respect to the lien limitation. In § 44-9-51 it is specified that: “Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 before filing liens” and in § 44-9-53 it is stated that: “no sub-subcontractor or supplier to subcontractors is entitled to extend, pursuant to § 44-9-15, a lien created pursuant to subdivision 44-9-1(1), unless the sub-subcontractor or supplier has first provided notice of furnishing labor or materials.”

South Dakota provides a lien to any party who furnishes labor and/or materials for the improvement or development of property, but requires the filing of a lien statement to keep the lien from extinguishing 120 days from the date labor or materials were last furnished. It is unclear from the above quoted statutes whether a sub-subcontractor or supplier to a subcontractor would be entitled to initiate a lawsuit against the property owner for enforcement of his lien within the 120-day time period in which a statement of claim must be filed, but prior to filing a statement of claim of lien, if a notice of commencement was filed and the claimant failed to provide a notice of furnishing.

Does a South Dakota Notice of Commencement expire?

No. Unlike some other states with strict time limits for the effective period of a Notice of Commencement, there is no specific effective period set forth by South Dakota law for a notice of commencement in that state.

Does the South Dakota notice of commencement need to be notarized?

No. There is no specific provision that requires a South Dakota Notice of Commencement to be notarized. However, some counties implement interesting filing requirements, and may request that a Notice of Commencement document by notarized in order to be filed.

Does the NOC need to be released or terminated?

No, there is no requirement in South Dakota mandating that a notice of commencement to be terminated or released. The release or termination of a Notice of Commencement is not a document contemplated or set forth by South Dakota statutes.

However, as an NOC is a recorded document, a purported “release or cancellation” of a previously filed NOC may be a document that could potentially also be filed, but there is no specific effect that such a filing would have on the project.

For Subcontractors and Suppliers

Do subcontractors and/or suppliers need to file a notice of commencement?

No.

In South Dakota, a Notice of Commencement may only be filed by the property owner, the property owner’s agent or authorized representative, or the GC. As the filing of a Notice of Commencement can limit the effectiveness of a sub-tiered party’s mechanics lien or bond claim rights, and creates specific notice requirements, it does not make sense for any sub-tier party to file a Notice of Commencement.

 

Does the notice of commencement affect my preliminary notice requirements?

Yes, kind of.

South Dakota statute states that: “If the provisions of §§ 44-9-50 and 44-9-51 [Notice of Commencement] are first invoked, no sub-subcontractor or supplier to subcontractors is entitled to extend, pursuant to § 44-9-15, a lien created pursuant to subdivision 44-9-1(1), unless the sub-subcontractor or supplier has first provided notice of furnishing labor or materials by certified or registered mail to the contractor identified in the notice of project commencement and has provided a copy of the notice to the owner of record.”

South Dakota does not normally require a preliminary notice to be sent on a project in order to retain lien rights. However, if an NOC is filed, in order to be allowed to file a statement of lien claim, sub-subcontractors and suppliers to subcontractors must send a notice of furnishing within sixty days after last furnishing labor or materials to the project.

When the notice of furnishing is required, it must be sent via certified or registered mail to the GC, and also provided to the property owner.

Does the notice of commencement affect my lien rights?

Kind of.

As noted above, if an NOC is filed, in order to be allowed to file a statement of lien claim to extend their lien, sub-subcontractors and suppliers to subcontractors must send a notice of furnishing within sixty days after last furnishing labor or materials to the project.

However, also as noted above, there is some conflict in the wording of the statutes, and it is unclear whether a sub-subcontractor or supplier to a subcontractor would be entitled to initiate a lawsuit against the property owner for enforcement of his lien within the 120-day time period in which a statement of claim must be filed, but prior to filing a statement of claim of lien, if a notice of commencement was filed and the claimant failed to provide a notice of furnishing.

Frequently Asked Questions about NOCs on South Dakota Public Jobs

Is there a notice of commencement requirement for South Dakota public projects?

No. The South Dakota Notice of Commencement is specifically related to private works of improvement, and is not a contemplated filing for public works of improvement.

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Free South Dakota Notice of Commencement Forms

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South Dakota Notice of Commencement Form

In South Dakota, Prime Contractors may protect itself from liens filed by sub-subcontractors and suppliers by filing a Notice of Project Commencement within thirty (30)...

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South Dakota Notice of Commencement Statutes

South Dakota’s mechanic’s lien statute can be found in South Dakota’s Mechanics’ Lien Law, SDCL § 44-9-1 et. seq. And, the rules and requirements specifically related to the Notice of Commencement process can be found at § 44-9-50 though § 44-9-53.

You can read the law directly on the state legislature’s website here, and the portions relating to Notices of Commencement are reproduced below.  Further, § 44-9-50 though § 44-9-53 are selected excerpts from the full construction lien statute in South Dakota which can be found on our South Dakota Mechanics Lien FAQs page.

South Dakota Notice of Commencement Statute

§ 44-9-50. Notice of Project Commencement - Time of Filing - Fees - Register of Deeds to Maintain Index

Any owner or any person entering into a direct agreement with the owner, or the duly authorized agent or representative of the owner, may file with the register of deeds of the county in which the improved premises are situated a notice of project commencement. The notice of project commencement shall contain the following information:
(1) The name and address of the person filing the notice of project commencement;
(2) The name and address of the owner or developer;
(3) A general description of the improvement; and
(4) The location of the project, including the legal description of the property.
The notice shall be filed within thirty days of the commencement of work and shall be accompanied by a filing fee of ten dollars to be deposited in the county’s general fund. The register of deeds in each county shall maintain an index of all notices of project commencements.

§ 44-9-51. Contractor's Name and Address and Location and Notice to be Posted - Contents of Location Notice

Any person filing a notice of project commencement shall post the name and address of the contractor and location notice at the job site. The location notice shall contain the following statement: The contractor on this project has filed a notice of project commencement at the county courthouse. Any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of § 44-9-53 before filing liens in connection with this project.

§ 44-9-52. Notice of Project Commencement does not Affect Title, Liens Allowable, or Mortgage

The filing of a notice of project commencement does not constitute a cloud, lien, or encumbrance upon, or defect to, the title of the real property described in the notice, nor does it alter the aggregate amounts of liens allowable by applicable statute, nor does it affect the priority of any mortgage or future advances under any mortgage.

§ 44-9-53. Notice of Furnishing of Labor or Materials Required Before Lien Extended - Notice Recipients - Time for Filing - Contents of Notice - Exemption

If the provisions of §§ 44-9-50 and 44-9-51 are first invoked, no sub-subcontractor or supplier to subcontractors is entitled to extend, pursuant to § 44-9-15, a lien created pursuant to subdivision 44-9-1(1), unless the sub-subcontractor or supplier has first provided notice of furnishing labor or materials by certified or registered mail to the contractor identified in the notice of project commencement and has provided a copy of the notice to the owner of record. Notice pursuant to this section shall be made not later than sixty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery, and the post office receipt for mailing such notice shall be attached to the lien and filed in the office of register of deeds. Such notice of furnishing labor or materials shall include:
(1) The name of the sub-subcontractor or supplier who claims payment;
(2) The name of the person with whom the claimant contracted or by whom the claimant was employed;
(3) A description of the labor, services, or materials furnished and the contract price or value thereof. Materials specifically fabricated by a person other than the one giving notice and contract price or value thereof shall be separately stated in the notice;
(4) A description of the project, sufficient for identification;
(5) The date when the first and last item of labor or materials was actually furnished or scheduled to be furnished; and
(6) The amount claimed to be due, if any.
Any person who gives notice in accordance with this section may extend a lien as provided in § 44-9-15.
This section does not apply to claims of individual laborers when the amount of their lien is less than two thousand dollars.

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