South Dakota Seller Disclosure Requirements: What Home Sellers Must Reveal
Yes. SDCL 43-4-38 requires the seller of a home with up to four units in one structure to hand the buyer the state form printed in SDCL 43-4-44 before the buyer makes a written offer. Delivered late, it lets the buyer cancel within three days (six if mailed).
A seller who intentionally or negligently breaks these rules owes the buyer “actual damages and repairs” (SDCL 43-4-42). The sections cited here are SDCL 43-4-37 to 43-4-44.1 as published by the South Dakota Legislature on September 26, 2026, including the 2024 and 2025 session-law changes.
Which South Dakota sales need the Seller’s Property Condition Disclosure Statement
“Residential real property” means property “consisting of not more than four family dwelling units, all of which are contained in one structure” (SDCL 43-4-37). A “transfer” includes a sale, an exchange, an installment sale contract, a lease with an option to purchase, any other option to purchase, and a ground lease coupled with improvements.
SDCL 43-4-43 lists six exceptions:
- transfers under a court order, such as probate administration, a divorce or legal-separation judgment between spouses, a writ of execution, a bankruptcy trustee, eminent domain, a government agency, or a specific-performance decree;
- transfers to a mortgagee by a mortgagor in default, foreclosure sales, sales by a lender that took the home by foreclosure or deed in lieu, and collateral assignments of a beneficial interest;
- transfers by a fiduciary administering a decedent’s estate, guardianship, conservatorship or trust;
- transfers from one co-owner to one or more other co-owners;
- transfers “to a spouse, a child, a parent, a sibling, a grandchild, or a grandparent”;
- transfers of “newly constructed residential real property which has never been occupied.”
Siblings are exempt here. Nieces, nephews, cousins and in-laws are not on the list.
The form is in the statute itself
In South Dakota the form is part of the statute. SDCL 43-4-44 opens with “The following form must be used” and then prints the whole Seller’s Property Condition Disclosure Statement, with a space for the property address on each page after the first and initials at the bottom. Its six parts:
- I. Lot or title information: liens beyond a first mortgage, work in the past one hundred twenty days that could support a lien under chapter 44-9, easements, encroachments, association fees, yard water standing more than forty-eight hours, flood plain, federally protected wetlands, historic designation, private transfer fees.
- II. Structural information: water penetration, roof leaks, pests, permits, past fire, smoke, wind, flood, hail or snow damage, insurance claims and whether the damage was repaired.
- III. Systems/utilities: a 47-item checklist from air conditioning to the wood-burning stove, including a radon system and whether the propane tank is leased or owned.
- IV. Hazardous conditions: sixteen items, each with “existing conditions” and “tests performed” boxes, including lead paint, radon in the house and in the well, expansive soil, mold, asbestos, buried fuel tanks, and “Production of Methamphetamines” and “Use of Methamphetamines.”
- V. Miscellaneous: private or public road, septic pumping date, the date and result of the last water test on a private water source, and “Since you have owned the property, are you aware of a human death by homicide or suicide occurring on the property?”
- VI. Additional comments.
Sections I, II and V are answered “Yes,” “No,” “Do Not Know” or “N/A.” The form says the statement “is NOT A WARRANTY of ANY KIND” and “NOT A SUBSTITUTE FOR ANY INSPECTIONS.” SL 2025, ch. 180 (Senate Bill 171, signed March 26, 2025, in force July 1, 2025) added the two historic-property questions, so an older printout is out of date.
Three days, six days: the offer-cancellation rule in SDCL 43-4-39
If the buyer signs a written offer before seeing the statement, or the seller later delivers a material amendment, SDCL 43-4-39 lets the buyer back out with written notice to the seller or the seller’s agent. The clock is “three days” when the statement or amendment was handed over in person and “six days” when it went “by deposit in the mail,” counted from that delivery. The section says “days,” not business days.
The amendment duty runs to a fixed cutoff. Under SDCL 43-4-38, if the seller learns of “any change of material fact” after delivering the statement and before “the date of closing for the property or the date of possession of the property, whichever comes first,” the seller must give a written amendment.
Homeowners’ association paperwork for sales after July 1, 2024
SDCL 43-4-44.1, added by SL 2024, ch. 177, applies to “all transfers of residential real property occurring after July 1, 2024.” In an association-governed home, the seller must give the buyer, before a written offer, a statement that an association governs the property, a copy of its governing documents, whether there is an assessment and its amount, frequency and purpose, and “A list of any special onetime assessments from the most recent three years.” If the seller learns of a material change before closing or possession, whichever comes first, a written amendment is due. The section counts as a homeowners’ association only one that has authority “to assess and record liens against the real property of its members.” The HOA selling guide covers the practical side.
Liability under SDCL 43-4-40 and 43-4-42
A missed or wrong form does not undo the sale. SDCL 43-4-42: “A transfer that is subject to §§ 43-4-37 to 43-4-44.1, inclusive, is not invalidated solely because a person fails to comply.” But “a person who intentionally or who negligently violates” those sections “is liable to the buyer for the amount of the actual damages and repairs suffered by the buyer as a result of the violation or failure,” and “the court may award costs and attorney fees to the prevailing party.” The same section preserves “any other rights or remedies of the buyer or seller.”
The protection for an honest seller is SDCL 43-4-40: “Except as provided in § 43-4-42, a seller is not liable for a defect or other condition in the residential real property being transferred if the seller truthfully completes the disclosure statement.” The exception points back to the liability rule above, which reaches anyone who “intentionally or who negligently violates” sections 43-4-37 to 43-4-44.1. Those sections include the written-amendment duty in SDCL 43-4-38 and the association papers in SDCL 43-4-44.1, so a truthful original form does not cover a skipped amendment or missing association documents. SDCL 43-4-41 adds that each disclosure must be made “in good faith.”
The South Dakota Supreme Court reads “truthfully” strictly. In Center of Life Church v. Nelson, 2018 S.D. 42, 913 N.W.2d 105, it repeated that with these statutes “the doctrine of caveat emptor has been abandoned in favor of full and complete disclosure of defects of which the seller is aware” (quoting Engelhart v. Kramer, 1997 S.D. 124). It also quoted Fuller v. Croston, 2006 S.D. 110: “The statutes require a complete and truthful disclosure made in good faith, not a disclosure simply sufficient to put the buyer on notice of the defects.” The sellers there had reported past basement water and a dewatering system, and the jury still found for the buyer on the statutory claim. The court held attorney fees are discretionary because the statute says “may.”
Lead paint is federal, radon is a form question
Pre-1978 homes add a federal layer on top of the state form. The seller gives the EPA lead pamphlet and any lead reports on hand (40 CFR 745.107) and, before the buyer is bound by the contract, gives the buyer a 10-day period to arrange a lead inspection or risk assessment, a period the parties may change “in writing” and the buyer may waive in writing (40 CFR 745.110). Foreclosure sales are exempt (745.101); so are elderly and disability housing and studio-type units with no separate bedroom, unless a child under six lives there or is expected to (745.103). On the state form, radon comes up twice: a radon system in section III and radon tests in the house and the well in section IV.
For the rest of the process see the home selling guide, the home inspection page, inspection red flags, the South Dakota state page and closing costs in South Dakota. Neighbors: North Dakota, Minnesota, Iowa and Nebraska.
What South Dakota buyers and sellers ask
We wrote “as is” into the contract. Does that end the disclosure claim?
Not by itself. In Oxton v. Rudland, 2017 S.D. 35, 897 N.W.2d 356, a Rapid City contract for deed said the buyer took the home “as is” with no representations. The Supreme Court still reversed summary judgment on the SDCL 43-4-38 claim because the record showed no “clear, unequivocal and decisive act” waiving it, and said an as-is clause “does not confer upon the seller a general immunity from liability for fraud.” The court has allowed waiver on other facts (Lucero v. Van Wie, 1999 S.D. 109). If you are planning an as-is sale, deliver the completed form anyway.
Do I have to mention that someone died in the house?
If it was a homicide or suicide while you owned it and you know about it, yes: section V of the SDCL 43-4-44 form asks that exact question. The question is limited to homicide or suicide “since you have owned the property”; item 9 of the same section still asks about “any other material facts.”
I’m selling my mother’s house as personal representative. Which rules apply?
A fiduciary’s sale while administering a decedent’s estate is exempt under SDCL 43-4-43(3), and so is a transfer to one of the six relatives in item 5. That exemption covers “Sections 43-4-37 to 43-4-44”, the property condition statement. It does not mention SDCL 43-4-44.1, so in a home governed by a homeowners’ association, deliver the association papers anyway. The federal lead-paint rule has no estate exemption, so a pre-1978 house still needs the pamphlet and the 10-day evaluation opportunity (the parties may agree in writing to a different period, and the buyer may waive it in writing).
The basement leaked after closing, and the form said “No.” What now?
Under SDCL 43-4-42, the buyer can recover actual damages and repairs if the seller violated the statute intentionally or negligently, and the court may award attorney fees to whichever side wins. A seller who truthfully completed the statement is not liable for the defect under SDCL 43-4-40, except as SDCL 43-4-42 provides for intentional or negligent violations. Center of Life Church was this kind of case: the Supreme Court held there was sufficient evidence for the jury to find the sellers were aware of ongoing water problems they had not disclosed.