PRE-LIEN NOTICE / NOTICE TO OWNER
(South Dakota)
[SDCL ch. 44-9 Mechanics’ & Materialmen’s Liens]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
XI. Exhibit A – Legal Description of Property
XII. Exhibit B – Proof of Service Affidavit
I. DOCUMENT HEADER
1.1 Title.
Pre-Lien Notice / Notice to Owner (the “Notice”).
1.2 Claimant.
[CLAIMANT LEGAL NAME], a [STATE] [ENTITY TYPE] with principal address at [ADDRESS] (“Claimant”).
1.3 Owner.
[OWNER LEGAL NAME], of [ADDRESS] (“Owner”).
1.4 General Contractor (if any).
[GC LEGAL NAME], of [ADDRESS] (“General Contractor”).
1.5 Project / Property.
The improvement commonly known as “[PROJECT NAME]” located at [SITE ADDRESS], legally described in Exhibit A (the “Property”).
1.6 Effective Date & Governing Law.
This Notice is effective as of [DATE] (the “Effective Date”) and is governed by South Dakota lien law, S.D. Codified Laws ch. 44-9 (“SD Lien Law”).
[// GUIDANCE: Insert all project participants known to Claimant. If any category is unknown, state “Unknown at time of Notice.”]
II. DEFINITIONS
For purposes of this Notice:
“Claim” means the right of Claimant to assert a mechanic’s lien under SD Lien Law for the value of its Work.
“First Furnishing Date” means the first date on which Claimant furnished labor, services, or materials for the Project, being [FIRST FURNISHING DATE].
“Last Furnishing Date” means the most recent date on which Claimant furnished labor, services, or materials for the Project, being [LAST FURNISHING DATE].
“Notice Date” means the date this Notice is deposited for service in accordance with Section 3.6.
“Work” means the labor, services, equipment, or materials furnished or to be furnished by Claimant for the improvement of the Property.
III. OPERATIVE PROVISIONS
3.1 Statutory Notice.
Pursuant to SD Lien Law, Claimant hereby notifies Owner, General Contractor, and all other required parties that Claimant has furnished, and continues to furnish, Work for improvement of the Property and that Claimant may assert a mechanic’s lien against the Property if not timely and fully paid.
3.2 Contract Identification.
a. Direct Contract (if any): [DIRECT CONTRACT DATE / “None”].
b. Subcontract/ Purchase Order: [DATE / NUMBER].
c. Contract Price: $[TOTAL CONTRACT PRICE].
3.3 Amount Owing as of Notice Date.
The value of Work furnished to date is $[TOTAL TO DATE], of which $[AMOUNT UNPAID] remains unpaid.
3.4 Estimated Value of Remaining Work (if any).
$[ESTIMATED VALUE].
3.5 Timing Compliance.
This Notice is served within [ ] days after the First Furnishing Date, satisfying any timing requirements applicable under SD Lien Law, including but not limited to single-family owner-occupied residential projects (currently 60 days).
[// GUIDANCE: Confirm project type. On commercial projects, preliminary notice is not mandatory in SD but is advisable. For owner-occupied single-family dwellings, notice within 60 days of first furnishing is required for remote claimants.]
3.6 Service of Notice.
a. Method: (i) Certified Mail, Return Receipt Requested; (ii) Registered Mail; or (iii) Personal Delivery with signed receipt.
b. Addresses for Service:
i. Owner – [ADDRESS]
ii. General Contractor – [ADDRESS]
iii. Construction Lender (if any) – [NAME & ADDRESS]
3.7 Reservation of Lien Rights.
Nothing herein waives, limits, or impairs Claimant’s statutory right to record a Statement of Lien within the period prescribed by SD Lien Law (generally 120 days after Last Furnishing Date; 90 days for certain single-family residential projects).
IV. REPRESENTATIONS & WARRANTIES
4.1 Authority.
Claimant represents it is duly authorized to file and serve this Notice.
4.2 Accuracy.
Claimant warrants that, to the best of its knowledge after reasonable inquiry, the statements in this Notice are true, correct, and complete in all material respects.
4.3 Survival.
The representations and warranties in this Article IV survive service of the Notice and any subsequent lien enforcement.
V. COVENANTS & RESTRICTIONS
5.1 Continuing Disclosure.
Claimant covenants to provide supplemental written notice of any material change in the claimed amount within ten (10) days of such change.
5.2 No Waiver of Rights.
Neither this Notice nor any partial payment shall be construed as a waiver or release of Claimant’s lien rights unless expressly set forth in a written, signed waiver complying with SD Lien Law.
VI. DEFAULT & REMEDIES
6.1 Event of Default.
Failure of Owner or its agent(s) to timely remit sums due to Claimant constitutes a default.
6.2 Cure Period.
Owner shall have ten (10) days after receipt of written demand to cure any payment default.
6.3 Remedies.
If default is not cured within the stated period, Claimant may (i) record its Statement of Lien, (ii) commence an action to foreclose the lien, and (iii) pursue any additional remedies available at law or in equity.
6.4 Attorney Fees & Costs.
Owner shall be liable for Claimant’s reasonable attorney fees and costs incurred to enforce its lien, to the extent permitted by SD Lien Law.
VII. RISK ALLOCATION
7.1 Limitation of Liability.
Owner’s aggregate liability to Claimant under this Notice shall not exceed the lesser of (a) the unpaid balance of the Contract Price or (b) the value of Work actually performed and incorporated into the Property.
7.2 Force Majeure.
Claimant’s performance deadlines are equitably extended for delays caused by force majeure, including acts of God, governmental actions, labor disputes, or material shortages.
VIII. DISPUTE RESOLUTION
8.1 Governing Law.
This Notice and any related dispute are governed by the laws of the State of South Dakota, without regard to conflict-of-laws principles.
8.2 Forum Selection.
The parties submit to the exclusive jurisdiction of the state courts sitting in [COUNTY], South Dakota, for lien foreclosure and all other proceedings.
8.3 Arbitration.
Not applicable.
8.4 Injunctive Relief.
Claimant reserves all rights to seek provisional or injunctive relief to preserve the Property, secure the Claim, or otherwise prevent dissipation of assets.
IX. GENERAL PROVISIONS
9.1 Amendments.
This Notice may be amended only by a subsequent written instrument executed by Claimant.
9.2 Assignment.
Claimant may assign its Claim and this Notice upon written notice to Owner.
9.3 Severability.
If any provision of this Notice is held unenforceable, the remaining provisions remain in full force.
9.4 Entire Notice.
This document constitutes the entire pre-lien notice relating to the Work and supersedes all prior oral or written communications on that subject.
9.5 Electronic Signatures.
Delivery of executed counterparts of this Notice by electronic means constitutes valid execution.
X. EXECUTION BLOCK
IN WITNESS WHEREOF, Claimant executes this Notice effective as of the Effective Date.
CLAIMANT:
[CLAIMANT LEGAL NAME]
By: ____
Name: ____
Title: _____
Date: _________
STATE OF _ )
) ss.
COUNTY OF _____ )
On this ___ day of _, 20_, before me, the undersigned Notary Public, personally appeared ________, known to me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument and acknowledged that he/she executed the same on behalf of the Claimant.
Notary Public
My Commission Expires: ____
[// GUIDANCE: South Dakota does not mandate notarization of the preliminary notice itself, but notarization strengthens evidentiary value, particularly if challenged. Remove if undesired.]
XI. EXHIBIT A – LEGAL DESCRIPTION OF PROPERTY
[Insert full legal description or attach copy of deed.]
XII. EXHIBIT B – PROOF OF SERVICE AFFIDAVIT
AFFIDAVIT OF SERVICE
I, ____, being duly sworn, state:
- I am over the age of eighteen and competent to testify.
- On _____, 20__, I served the foregoing Pre-Lien Notice on the parties listed below by the method indicated:
☐ Certified Mail, RRR ☐ Registered Mail ☐ Personal Delivery
a. Owner: ____, at ____
b. General Contractor: ____, at ___
c. Lender (if any): ___, at ___
- The mailing receipts or signed delivery acknowledgments are attached hereto.
Affiant
STATE OF _ )
) ss.
COUNTY OF _____ )
Subscribed and sworn before me on this ___ day of ____, 20__.
Notary Public
My Commission Expires: ____
[// GUIDANCE: Attach USPS return receipts or delivery acknowledgment sheets behind the affidavit to create a complete evidentiary package.]
END OF DOCUMENT