What is a Lien in South Dakota?
In South Dakota, a lien is a charge or interest held on a debtor's property by a creditor. A Lien is a legal tool that ensures the repayment of loans and debts. Hence, a creditor can file a lien on a borrower's property as security to recover the loan. If the loanee does not complete the payment within the agreed period, the creditor can repossess the asset. Common liens in South Dakota include mechanics' lien, property lien, judgment lien, mortgage lien, and tax lien. These liens are typically classified as either consensual or non-consensual, and the creditors enforce them with a judicial order issued by South Dakota courts.
Are Liens Public in South Dakota
Yes, liens in South Dakota are public record. Pursuant to the provisions of South Dakota public record laws, records maintained by state custodians are deemed public information. Hence, any lien that is recorded with a county office or the state Department of Revenue is accessible to members of the public.
Types of Lien in South Dakota
There are various types of liens in South Dakota. However, they are typically categorized as either consensual or non-consensual.
There is a mutual agreement between the debtor and the creditor with consensual or voluntary liens. Usually, the debtor allows the creditor to hold some charge over an asset and decide how long it will repay the debt. These kinds of agreements are independent of the court of law. If the debtor defaults, the creditor can take the property. Non-consensual liens are enforced liens with two subdivisions; statutory liens and judgment liens. Examples of statutory liens include mechanics' lien, hospital lien, manufacturer's lien, and material men's lien.
Judgment liens are peculiar and only come into effect through a judge's pronouncement. A judge awards a judgment lien at the end of a case in which the court adjudges that a party ought to receive payment from the other party involved in the case. To forestall the usual but undesirable outcome of the owing party refusing to pay, the judge may then go ahead to place a lien on one or more of the debtor's property.
How Do I Check for Liens in South Dakota?
In South Dakota, free lien searches are accessible to the public. Agencies that maintain property ownership provide this information, which can either be obtained from a search at the relevant agency's physical location or on its website. That is if the agency offers a search tool on its website. Information on liens is also available at the various county offices. Thus, these offices can be visited and information obtained. The information retrieved from such websites may include:
- Lienee's name and address
- Lienholder's name and address
- Type of lien
- Document or file number
- Recording/filing date
- Status of the lien (active, released, or expired)
- The lien's lapse or expiry date
- Document images (e.g., lien notices, abstracts of judgments, the release of lien)
What is a Property Lien in South Dakota?
A South Dakota property lien refers to a creditor's claim on a borrower's property, either for a debt owed or for payments for goods and services. Properties that can be liened include real estate, cars, jewelry, luggage, and art. Examples of property lien in South Dakota are vendor's and vendee's liens and manufacturer's lien.
South Dakota also allows the keeper of a lodging establishment to hold personal properties belonging to a guest within the lodging establishment premises. This secures any payment owed by the guest, as long as the amount owed does not exceed $500 and is referred to as the Lodging establishment's lien.
How Do You Know if a Property Has a Lien in South Dakota?
Interested persons may find out if a property has a lien in South Dakota with relative ease. Consensual liens are usually created with the knowledge of the property owner. Therefore, the owner will likely be aware of the lien. However, if this is not the case, requestors may query the county recorder's office or use the online tools provided by local or state repositories.
To search for a lien online, the requesting party will be required to provide the property owner's name and the address of the property.
If all else fails, the requestor may also contact a title company or a real estate attorney.
In any case, the most efficient way to find out if a property has a lien in South Dakota is to run a title deed search through the county recorder or clerk's office.
What is a Tax Lien in South Dakota?
A tax lien in South Dakota is a statutory lien the government holds over the property of a resident who has failed to pay tax to the state, including property tax, income tax, or estate tax. A tax lien on a property does not immediately transfer the ownership of such property to the government. The property is still the owner's until the individual pays the tax arrears but cannot sell or transfer the asset. Nevertheless, the government can claim the property if the debtor refuses to pay. Upon payment, the tax lien will be lifted from the property. The county offices in South Dakota handle foreclosure of properties seized through tax lien when the owners of such properties fail to pay taxes owed within the stipulated time.
What is a Mortgage Lien in South Dakota?
A mortgage lien is filed when an individual funds a property purchase through a loan using the building as collateral. If the debtor fails to pay the loan, the creditor may claim the property. A mortgage lien is a consensual lien as the mortgagor voluntarily consents to the lien agreement. It differs from other types of property lien as it does not require enforcement by law. Whenever there is a mortgage lien and any other kind of lien on a property, the mortgage lien, by law, will be given priority over other types of lien on that asset.
What is a Mechanics Lien in South Dakota?
South Dakota Mechanics liens provide security to suppliers and subcontractors who supply labor materials and provide furnishing to properties. Companies that provide light, power, or water to construction projects can also file for a mechanics lien. Mechanics lien in South Dakota covers both the improved property alone and the land upon which the structure or property is. However, contractors, suppliers, and subcontractors cannot file a mechanics lien if the project is unauthorized by the owner.
Parties can only file a mechanics lien in South Dakota 120 days after the last date of delivering the service or material. The supplier or subcontractor must send a preliminary notice to the general contractor and property owner within 60 days. Contractors and laborers can file a mechanics lien whether the project is ongoing or not. However, parties can only enforce a mechanics lien within six years after completing the property.
What is a UCC Lien?
The Uniform Commercial Code (UCC) in South Dakota is a collection of statutes guiding commercial transactions which cover the sale and purchase of goods. Financial statements in South Dakota are documented publicly to ensure secured transactions between a debtor and a creditor in the case of bankruptcy and judicial proceedings. Other commercial transactions under the UCC code are leases, bank deposits and collections, fund transfer, bulk transfer, letters of credits, negotiable instruments, and investment securities. The UCC protects both the creditor and debtor by filing financial statements under uniformed platforms. The UCC also promotes consistency among different filing jurisdictions.
What is a Judgment Lien?
A judgment lien provides the creditor the opportunity to obtain payment from the proceedings of the sale of the debtor's property. In South Dakota, a judgment lien applies to real estate and not personal properties. The judgment lien record in South Dakota remains on the debtor's property for ten years.
Voluntary Lien vs. Involuntary Lien in South Dakota?
In a voluntary lien, the property owner willingly gives a security interest in the loan document to the creditor in case of a default in payment. Furthermore, the borrower is aware of the contract terms and has agreed to give the creditor a legal right over an asset. Mortgages are the most common type of voluntary liens.
On the other hand, involuntary liens are legal claims placed on properties regardless of the property owner's permission. A typical example of an involuntary lien is the mechanic's lien. A voluntary lien differs from an involuntary lien in terms of approval from the asset owner.
How Creditors Collect Payment Through a Lien
A creditor may collect their payment through a lien in South Dakota by enforcing a judgment lien. While liens offer creditors a claim over the liened property, the liens cannot guarantee the debtor's cooperation.
A judgment lien is one way to ensure that an individual is paid what they are owed. This judgment lien gives the creditor the right to receive payment from proceeds after the sale of the debtor's property. In South Dakota, the judgment lien can only be attached to real estate and not personal property.
How Do I Get a Lien Removed in South Dakota?
In South Dakota, liens can be removed by filing for a lien cancellation. South Dakota law requires that this cancellation only be filed upon satisfaction of the lien. The satisfaction must be in the presence of at least two witnesses and subsequently filed with the Register of Deeds. If the claimant does not complete satisfaction within ten days of receiving the demand, the lien claimant will be liable for damages, attorney fees, and an additional penalty of $100.
Lien cancellation is primarily used to release a lien claim after satisfying the claims of the lien. However, liens may also be removed following a settlement agreement or a court judgment.
How Long Does a Lien Stay on Your Property in South Dakota?
The type of lien on a property determines the length of time a lien stays on that property. A consensual lien stays on a property until the debt is paid or the property is foreclosed.
A non-consensual lien is established by statutory law. Therefore, even though a debt must be paid to remove this lien, it is still enforceable as long as its statute of limitations is valid.
A judgment lien in South Dakota remains on the debtor's property (even if the property changes ownership) for ten years.
A mechanics lien is valid for up to 6 years in South Dakota, which leaves an individual with more than enough time to enforce their lien claim.
How to Avoid a Lien in South Dakota
In South Dakota, residents may avoid liens through prompt payments on agreements made with a lender. Individuals should steer clear of debts that could be incurred either by their actions or possible lawsuits. By these, one's properties are protected from liens by lenders or creditors.
