Tenant Answer to Forcible Entry and Detainer (Eviction) Complaint — South Dakota

TENANT ANSWER TO FORCIBLE ENTRY AND DETAINER (EVICTION) COMPLAINT — SOUTH DAKOTA

TABLE OF CONTENTS

1. Caption
2. Introduction and Reservation of Rights
3. Admissions, Denials, and Responses
4. Affirmative Defenses
5. Counterclaims
6. Demand for Jury Trial (If Applicable)
7. Request for Hearing and Continuance Considerations
8. Servicemember and Bankruptcy Notices (If Applicable)
9. Prayer for Relief
10. Verification
11. Signature and Service Block
12. Certificate of Service
13. Exhibits
14. South Dakota Practice Notes for Tenants
15. Sources and References

1. CAPTION

STATE OF SOUTH DAKOTA

COUNTY OF [____________________]

IN THE [☐ MAGISTRATE COURT ☐ CIRCUIT COURT]

[__]TH JUDICIAL CIRCUIT

Civil File No.: [________________________________]

ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS OF DEFENDANT [TENANT]

Defendant [TENANT] ("Tenant"), for Tenant's Answer to Plaintiff's Verified Complaint for Forcible Entry and Detainer, states:

2. INTRODUCTION AND RESERVATION OF RIGHTS

2.1. Tenant denies each and every allegation of the Verified Complaint not expressly admitted herein.

2.2. Tenant reserves the right to amend or supplement this Answer, raise additional affirmative defenses, and add counterclaims as discovery proceeds and as otherwise permitted under SDCL Chapter 15-6.

2.3. By filing this Answer, Tenant does not waive any defense regarding personal jurisdiction, subject-matter jurisdiction, venue, or insufficiency of process or service of process; all such defenses are expressly preserved and are asserted in Section 4 below.

2.4. Tenant requests appointment of counsel or referral to legal-aid resources if Tenant is unable to obtain or afford counsel.

3. ADMISSIONS, DENIALS, AND RESPONSES

3.1. As to Paragraph 2.1 of the Complaint (Plaintiff's identity), Tenant [admits / denies / lacks information sufficient to form a belief and therefore denies].

3.2. As to Paragraph 2.2 (Tenant 1 identity and residence), Tenant [admits / denies in part — specifically: ] [__________].

3.3. As to Paragraph 3.1–3.3 (jurisdiction and venue), Tenant [admits jurisdiction and venue / contests venue and demands change of venue / contests subject-matter jurisdiction because the amount in controversy exceeds the magistrate-court limit and the action must be transferred to circuit court under SDCL § 16-12A-27].

3.4. As to Paragraph 4.1 (Premises address), Tenant admits.

3.5. As to Paragraph 4.2 (existence of Lease), Tenant [admits / denies / admits the existence of a written lease but denies any allegation that the attached Exhibit A is the operative version].

3.6. As to Paragraph 4.4 (rent amount), Tenant [admits / denies — the agreed monthly rent is $[___], not as alleged].

3.7. As to Paragraph 4.6 (Plaintiff's compliance with conditions precedent), Tenant DENIES. Plaintiff has failed to perform conditions precedent including, without limitation: [failure to maintain the Premises in habitable condition under SDCL § 43-32-8 / failure to provide notice required by Lease § ____ / failure to comply with federal subsidy notice requirements at 24 C.F.R. § ____].

3.8. As to the grounds asserted in Section 5 of the Complaint:

(a) Nonpayment. Tenant [admits / denies] that rent is unpaid in the amount alleged. Tenant asserts setoff and recoupment as set forth below.

(b) Holdover. Tenant denies that the Lease was lawfully terminated. The notice purporting to terminate the tenancy was [insufficient under SDCL § 43-32-13 / served less than 15 days before the alleged termination date / served while Tenant or Tenant's spouse/dependent was on active military duty (requiring two months' notice under SDCL § 43-32-16 where that state-law rule applies; separate federal eviction protection is addressed below under 50 U.S.C. § 3951)].

(c) Material Breach. Tenant denies any material breach. To the extent the conduct alleged occurred, it was cured, was not material, was waived by Plaintiff's acceptance of subsequent rent, and/or was authorized by the Lease.

3.9. As to Paragraph 6 (pre-suit notice), Tenant [admits receipt / denies receipt / admits receipt but denies the notice complied with the Lease and applicable federal regulations].

3.10. As to Paragraph 7 (damages), Tenant denies and demands strict proof. Tenant further asserts setoff for [unreturned security deposit / habitability damages / retaliation remedies / discrimination remedies].

3.11. As to all other paragraphs not specifically admitted, Tenant denies.

4. AFFIRMATIVE DEFENSES

Tenant asserts the following affirmative defenses, pleaded in the alternative and without conceding the burden of proof:

4.1 First Defense — Failure to State a Claim. The Complaint fails to state a claim upon which relief can be granted under SDCL § 21-16-1.

4.2 Second Defense — Defective or No Notice. Plaintiff failed to comply with notice requirements imposed by (a) the Lease (Section [___]), (b) federal subsidy regulations (24 C.F.R. § [___]), and/or (c) SDCL § 43-32-13 (requiring fifteen (15) days' written notice for termination of a tenancy at will, as amended by 2024 SB 89). The notice was untimely, served improperly, did not provide adequate cure opportunity, did not state the grounds with sufficient specificity, and/or was served on persons not authorized to receive service. While statutory pre-suit notice was repealed effective July 1, 2024, contractual and federal notice requirements remain enforceable as conditions precedent.

4.3 Third Defense — Limited Implied Warranty of Habitability. Plaintiff breached the duties imposed by SDCL § 43-32-8 to deliver and maintain the Premises in safe and habitable condition, including without limitation: [no heat / no hot water / pest infestation / mold / leaking roof / nonfunctioning electrical or plumbing / structural defects / failure to maintain common areas]. Tenant gave Plaintiff written notice on [__/__/____] (Exhibit ☐) and Plaintiff failed to repair within a reasonable time. Tenant is entitled to abatement, setoff, and/or recoupment against any rent claim.

4.4 Fourth Defense — Statutory Retaliation (SDCL §§ 43-32-27 to 43-32-28). Tenant alleges that, after one of the statute's listed special events, Plaintiff [increased rent above fair market value / decreased electric, gas, water, or sewer service / gave a notice to vacate that was not based on a lease breach]. The qualifying special event was [a good-faith governmental-code complaint described in § 43-32-27(1) / Tenant's written repair notice under § 43-32-9 / Tenant's organization of or membership in a tenant union or organization] on [__/__/____]. Section 43-32-27 does not create a general rebuttable presumption: a notice given more than 180 days after the special event is a statutory defense, and failure to renew a written lease at or before expiration is excluded. If liability is established, § 43-32-28 incorporates the remedies in § 43-32-6 and permits reasonable and customary attorney's fees supported by counsel's verified itemized statement.

4.5 Fifth Defense — Discrimination. Plaintiff's action is motivated by Tenant's [race / color / creed / religion / sex / ancestry / disability / familial status / national origin] in violation of SDCL § 20-13-20 and the federal Fair Housing Act (42 U.S.C. § 3604), including failure to provide reasonable accommodation under 42 U.S.C. § 3604(f)(3).

4.6 Sixth Defense — Federal Good-Cause / Subsidy Compliance. The tenancy is assisted under [Section 8 / public housing / USDA Rural Development / LIHTC / HOME / OTHER]. Plaintiff has failed to satisfy good-cause requirements and regulatory notice obligations under [24 C.F.R. § ____], requiring dismissal.

4.7 Seventh Defense — Servicemember Protection. Tenant [is a servicemember in military service / is a covered dependent of a servicemember] under 50 U.S.C. § 3911. The Premises and rent are covered by 50 U.S.C. § 3951, which requires a court order for eviction and authorizes a stay or lease adjustment when military service materially affects the servicemember's ability to pay the agreed rent. Notice of less than two (2) months under SDCL § 43-32-16 is also insufficient where that state-law protection applies.

4.8 Eighth Defense — Waiver and Estoppel. Plaintiff has waived strict enforcement of the Lease provision(s) at issue by accepting rent after the alleged breach, by long-toleration of the conduct, and/or by selectively enforcing the provision against Tenant.

4.9 Ninth Defense — Tender, Cure, and Setoff. Tenant has tendered or stood ready and able to tender all sums lawfully due and to cure any alleged breach, but Plaintiff refused tender or denied opportunity to cure. Tenant asserts any legally available setoff against a rent claim for: (a) an unreturned security deposit under SDCL § 43-32-24, including failure within twenty-one (21) days after termination and receipt of mailing or delivery instructions to return the deposit or give a specific written reason for withholding, or failure upon request to provide an itemized accounting within forty-five (45) days after termination; (b) habitability damages; (c) Plaintiff's breach of the Lease; and (d) retaliation and discrimination remedies.

4.10 Tenth Defense — Acceptance of Rent After Breach. Plaintiff accepted rent after the alleged grounds for eviction arose, thereby waiving the right to assert those grounds as a basis for termination.

4.11 Eleventh Defense — Unclean Hands and Equitable Estoppel. Plaintiff's own breaches and inequitable conduct preclude the relief sought. Forfeitures are disfavored in equity.

4.12 Twelfth Defense — Insufficient Process / Service of Process. Plaintiff failed to comply with the service requirements of SDCL Chapter 21-16 and SDCL Chapter 15-6, including without limitation [failure to make two attempts at personal service within 30 days / improper substitute service / failure to complete required mailing].

4.13 Thirteenth Defense — Wrong Forum / Excess of Jurisdiction. The amount in controversy exceeds the magistrate-court jurisdictional limit, requiring transfer to circuit court under SDCL § 16-12A-27. [OR: A genuine title or boundary issue requires certification to circuit court under SDCL § 21-16-9.]

4.14 Fourteenth Defense — Self-Help Eviction. Plaintiff engaged in self-help eviction (lockout, utility shutoff, removal of belongings, and/or threats), barring the relief sought and supporting Tenant's counterclaim for wrongful eviction.

4.15 Fifteenth Defense — Bankruptcy Stay. Tenant filed a petition under Title 11 of the United States Code on [__/__/____] (Case No. [____]), invoking the automatic stay of 11 U.S.C. § 362.

4.16 Sixteenth Defense — Reservation. Tenant reserves all defenses, including those that may be revealed through discovery.

5. COUNTERCLAIMS

Pursuant to SDCL § 15-6-13, Tenant asserts the following counterclaims against Plaintiff:

5.1 Count I — Violation of Security-Deposit Statute (SDCL § 43-32-24). After termination of the tenancy and receipt of Tenant's mailing address or delivery instructions, Plaintiff failed within twenty-one (21) days to return Tenant's security deposit of $[___] or provide a written statement giving the specific reason for withholding it, and/or failed upon Tenant's request to provide an itemized accounting within forty-five (45) days after termination. A noncomplying lessor forfeits the right to withhold the deposit; bad-faith retention or failure to provide the required statement or accounting may support punitive damages of not more than $200.

5.2 Count II — Statutory Retaliation (SDCL §§ 43-32-27 to 43-32-28). Plaintiff committed one of the acts and Tenant experienced one of the special events pleaded in Defense 4.4. Tenant seeks the remedies incorporated from § 43-32-6—injunctive relief, recovery of possession or termination as applicable, damages equal to two months' rent, and return of advance rent and deposit—plus any reasonable and customary attorney's fees the court awards on a verified itemized statement.

5.3 Count III — Breach of Statutory Duty to Maintain (SDCL § 43-32-8). Plaintiff breached the duty to deliver and maintain the Premises in safe and habitable condition, causing Tenant damages including diminished value of tenancy, repair costs, alternative-housing costs, personal-property damage, and loss of use.

5.4 Count IV — Breach of Lease. Plaintiff breached the Lease by [FACTS].

5.5 Count V — Wrongful Eviction / Self-Help (Common Law). Plaintiff unlawfully attempted self-help eviction by [lockout / utility shutoff / removal of belongings / threats], causing Tenant damages.

5.6 Count VI — Discrimination (SDCL § 20-13-20; 42 U.S.C. § 3604). Plaintiff discriminated against Tenant on the basis of [PROTECTED CLASS], entitling Tenant to actual damages, civil penalties, and attorney's fees under the South Dakota Human Rights Act and the federal Fair Housing Act.

5.7 Prayer on Counterclaims. Tenant requests judgment against Plaintiff on each counterclaim for actual damages, statutory damages, return of the security deposit, restoration of utilities (if applicable), injunctive relief, attorney's fees, court costs, and such other relief as the Court deems just.

6. DEMAND FOR JURY TRIAL (IF APPLICABLE)

Pursuant to SDCL § 15-6-38 and Article VI, § 6 of the South Dakota Constitution, Tenant demands trial by jury on all issues so triable.

7. REQUEST FOR HEARING AND CONTINUANCE CONSIDERATIONS

7.1. Tenant requests an evidentiary hearing on all factual issues and the opportunity to present witnesses and documentary evidence.

7.2. Tenant requests a reasonable continuance pursuant to SDCL § 21-16-8 to obtain counsel and to prepare a defense to the multi-count Complaint, with bond conditions consistent with Tenant's ability to pay.

8. SERVICEMEMBER AND BANKRUPTCY NOTICES (IF APPLICABLE)

8.1 SCRA. ☐ Tenant is a servicemember in military service or a covered dependent under 50 U.S.C. § 3911; the Premises are primarily residential and the rent is within the annually adjusted cap. A copy of military-service records / DMDC verification and any dependent-status records is attached as Exhibit [___]. Tenant invokes the court-order protection of 50 U.S.C. § 3951 and, because military service materially affects the servicemember's ability to pay the agreed rent, requests a stay or lease adjustment under § 3951(b).

8.2 Bankruptcy Stay. ☐ Tenant filed a petition under Title 11 on [__/__/____] (Case No. [____], [CHAPTER], U.S. Bankruptcy Court, District of South Dakota). The automatic stay under 11 U.S.C. § 362 applies. A copy of the petition is attached as Exhibit [___].

9. PRAYER FOR RELIEF

WHEREFORE, Tenant prays that this Court:

A. Dismiss the Verified Complaint with prejudice and deny restitution of possession;

B. Award Tenant damages, statutory penalties, and offsets on the Counterclaims;

C. Order Plaintiff to return Tenant's security deposit with statutory damages under SDCL § 43-32-6.1;

D. Award the remedies proved under SDCL §§ 43-32-27 to 43-32-28 and § 43-32-6, including any reasonable and customary attorney's fees supported by the verified itemized statement required by § 43-32-28;

E. Award Tenant attorney's fees and costs under the Lease, the South Dakota Human Rights Act (SDCL § 20-13-35.1), the federal Fair Housing Act (42 U.S.C. § 3613(c)(2)), and any other applicable provision;

F. Award Tenant prejudgment and post-judgment interest under SDCL § 54-3-5.1 and § 54-3-16;

G. Enjoin Plaintiff from any further self-help eviction, retaliation, or discrimination; and

H. Grant such other relief as the Court deems just.

10. VERIFICATION

State of South Dakota )
) ss.
County of [________] )

I, [TENANT NAME], being first duly sworn upon oath, state that I am the Defendant herein; that I have read the foregoing Answer, Affirmative Defenses, and Counterclaims; that I know the contents thereof; and that the matters and things stated therein are true to the best of my knowledge, information, and belief, except as to those matters stated upon information and belief, and as to those matters, I believe them to be true.

____________________________________
[TENANT NAME]

Subscribed and sworn to before me this [__] day of [MONTH], [YEAR].

____________________________________
Notary Public — South Dakota
My commission expires: [__/__/____]

(SEAL)

11. SIGNATURE AND SERVICE BLOCK

Dated: [__/__/____]

____________________________________
[ATTORNEY NAME]
SD Bar No.: [________]
[FIRM / LEGAL SERVICES NAME]
[STREET ADDRESS]
[CITY, SD, ZIP]
Telephone: [(___) ___-____]
Email: [EMAIL]
Attorney for Defendant

[OR FOR PRO SE FILER]:

____________________________________
[TENANT NAME], Pro Se
[ADDRESS, TELEPHONE, EMAIL]

12. CERTIFICATE OF SERVICE

I certify that on [__/__/____] I served a true and correct copy of this Answer, Affirmative Defenses, and Counterclaims upon Plaintiff's counsel [OR Plaintiff if pro se] by:

☐ Personal delivery
☐ U.S. Mail, First-Class, postage prepaid
☐ E-mail to [EMAIL] (with consent)
☐ E-filing through the South Dakota Unified Judicial System portal

Addressed to:

[PLAINTIFF'S COUNSEL NAME]
[FIRM]
[ADDRESS]

____________________________________
[NAME]
Defendant or Counsel

13. EXHIBITS

14. SOUTH DAKOTA PRACTICE NOTES FOR TENANTS

14.1 Five-Day Answer Deadline. Effective July 1, 2024 (2024 SB 90), tenants have FIVE (5) days to file an Answer after personal service of the Summons (SDCL § 21-16-7). The day of service is excluded; the last day is included unless it is a Saturday, Sunday, or legal holiday. MISSING THIS DEADLINE GENERALLY MEANS DEFAULT JUDGMENT.

14.2 No Statutory Pre-Suit Notice for Most Grounds. SDCL § 21-16-2 was repealed effective July 1, 2024. However, contractual notice-and-cure provisions and federal subsidy notice rules remain enforceable. Carefully review the Lease and any subsidy program documents.

14.3 Common Tenant Defenses. Although South Dakota does not codify many tenant remedies, common-law and statutory defenses remain available: limited habitability (SDCL § 43-32-8), retaliation (SDCL § 43-32-27, -28), discrimination (SDCL § 20-13-20 and FHA), defective notice, security-deposit issues (SDCL §§ 43-32-6.1 and 43-32-24), waiver/estoppel, federal good cause for subsidized housing, SCRA, and bankruptcy stay. Whether a claimed setoff is procedurally and substantively available must be verified for the case.

14.4 Self-Help Eviction Is Illegal. If your landlord changed the locks, removed your belongings, or shut off utilities, that is unlawful self-help eviction. Document everything (photographs, receipts, witnesses) and assert it as a counterclaim. South Dakota does not have a specific treble-damages statute, but tort and contract remedies are available.

14.5 Mobile-Home Parks. Lot-only mobile-home tenancies are governed in part by SDCL § 43-32-29 et seq., which provide longer notice rules and additional protections; if you own your mobile home and rent only the lot, raise these statutes as a defense.

14.6 Sioux Falls and Rapid City. Limited municipal landlord-tenant regulation. Verify any local rental-licensing or nondiscrimination ordinance before disposing of defenses based on local law.

14.7 Appeals. A judgment of possession may be appealed to the South Dakota Supreme Court within thirty (30) days under SDCL § 15-26A-6. Appeal is on the record (no de novo trial). A supersedeas/stay bond is typically required to maintain possession during appeal. Many counties will execute the writ even before the appeal is decided unless a stay is obtained.

14.8 Get Help Immediately.

• East River Legal Services (Sioux Falls): (605) 336-9230 — https://erlservices.org
• Dakota Plains Legal Services (West/Central SD): (605) 856-4444 — https://dpls.org
• South Dakota State Bar Lawyer Referral: (605) 224-7554
• 211 South Dakota: dial 2-1-1 (rental assistance)
• South Dakota Division of Human Rights: (605) 773-3681
• HUD Region VIII Fair Housing: 1-800-877-7353
• Servicemembers' Legal Assistance: https://legalassistance.law.af.mil/

15. SOURCES AND REFERENCES

• South Dakota Codified Laws, Chapter 21-16 (Forcible Entry and Detainer): https://sdlegislature.gov/Statutes/21-16
• South Dakota Codified Laws, Chapter 43-32 (Lease of Real Property): https://sdlegislature.gov/Statutes/43-32
• South Dakota Codified Laws, Chapter 20-13 (Human Rights — § 20-13-20): https://sdlegislature.gov/Statutes/20-13
• South Dakota Codified Laws, Chapter 15-26A (Appeals to Supreme Court): https://sdlegislature.gov/Statutes/15-26A
• 2024 SB 89 / SB 90: https://sdlegislature.gov
• South Dakota Unified Judicial System — Eviction Self-Help (forms UJS-111, UJS-112, UJS-119, UJS-232): https://ujs.sd.gov/self-help/civil-law-help/evictions/
• South Dakota Multi-Housing Association — New Eviction Laws: https://www.sdmha.com/news/new-eviction-laws
• East River Legal Services — 2024 Eviction Law Updates: https://erlservices.org/2024/06/14/2024-eviction-law-updates-what-you-need-to-know/
• South Dakota Department of Labor & Regulation, Division of Human Rights: https://dlr.sd.gov/human_rights/
• South Dakota Consumer Protection — Landlord/Tenant Fast Facts: https://consumer.sd.gov/fastfacts/landlordtenant.aspx
• "Strengthening South Dakota's Landlord-Tenant Law," USD Law Review: https://red.library.usd.edu/sdlrev/
• Federal Fair Housing Act, 42 U.S.C. §§ 3601–3619
• Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901–4043
• HUD multifamily termination regulations (24 C.F.R. Parts 5, 247, 966, 982)
• 11 U.S.C. § 362 (automatic bankruptcy stay)

END OF ANSWER