LATE FEE ADDENDUM

to Residential Lease Agreement – State of South Dakota

[// GUIDANCE: This template is drafted as an addendum that will be attached to, and made part of, an existing written Residential Lease Agreement (“Lease”). All bracketed items must be completed or tailored by counsel before execution.]

I. DOCUMENT HEADER

1. Parties
   a. “[LANDLORD LEGAL NAME],” a [STATE] [ENTITY TYPE] (“Landlord”)
   b. “[TENANT LEGAL NAME(S)]” (“Tenant”)

2. Property
   Street address: [PROPERTY ADDRESS], [CITY], South Dakota, [ZIP].

3. Recitals
   a. Landlord and Tenant are parties to that certain Residential Lease Agreement dated [LEASE DATE] (the “Lease”).
   b. The Lease does not fully address the assessment, timing, or notice of late rental payments.
   c. The parties now desire to supplement the Lease in accordance with South Dakota landlord-tenant law to provide for late fees, related grace periods, and statutory notice requirements.

4. Effective Date
   This Late Fee Addendum (“Addendum”) is effective as of [ADDENDUM EFFECTIVE DATE] (“Effective Date”).

5. Jurisdiction
   This Addendum is governed by the laws of the State of South Dakota’s landlord-tenant statutes and common law (“Governing Law”).

II. DEFINITIONS

Alphabetically, capitalized terms have the meanings set forth below and are used consistently throughout this Addendum:

“Business Day” – Any day other than Saturday, Sunday, or a South Dakota state holiday.

“Grace Period” – The period beginning on the calendar day immediately following the Rent Due Date and expiring at 11:59 p.m. on the third (3rd) calendar day thereafter, unless a longer period is inserted: [ ____ ] days.

“Late Fee” – The liquidated amount assessed for failure to pay Rent in full before expiration of the Grace Period, calculated per Section III.1.

“Lease” – The Residential Lease Agreement identified in Section I.3.a, as amended.

“Notice of Late Fee” – The written notice substantially in the form attached as Exhibit A.

“Rent” – The recurring consideration due from Tenant under the Lease, exclusive of utilities, deposits, or other charges.

“Rent Due Date” – The calendar day on which Rent is due under the Lease (default: the first (1st) day of each month).

III. OPERATIVE PROVISIONS

1. Assessment of Late Fee
   a. If the full amount of Rent is not received by Landlord before the expiration of the Grace Period, Tenant shall owe a Late Fee equal to the greater of:
   i. [ $ ____ ]; or
   ii. [ __ ]% of the unpaid Rent amount,
   provided, however, that the Late Fee shall not exceed the amount reasonably calculated to compensate Landlord’s actual administrative costs and shall not constitute an unlawful penalty.
   b. The Late Fee is additional Rent and is immediately due and payable upon delivery of the Notice of Late Fee.

2. Statutory Notice Requirements
   a. Concurrently with, or immediately after, assessment of any Late Fee, Landlord shall provide Tenant with a written Notice of Late Fee that:
   i. States the total amount of Rent outstanding, the Late Fee assessed, and the date by which such amounts must be paid; and
   ii. Includes the three-day notice to quit for non-payment required by S.D. Codified Laws § 21-16-2 (2023) if Landlord intends to pursue eviction.
   b. Delivery of Notice shall be made in any manner permitted under the Lease and § 21-16-2, including personal service or certified mail.

3. Allocation of Payments
   Payments received after imposition of a Late Fee shall be applied in the following order: (1) court costs and attorney’s fees awarded by a tribunal; (2) Late Fees; (3) past-due Rent; (4) current Rent.

4. Non-Waiver
   Assessment or acceptance of a Late Fee does not: (a) waive any other default; (b) extend the term of the Lease; or (c) limit Landlord’s right to exercise any remedy, including eviction.

5. Modification of Lease
   This Addendum amends and supersedes any inconsistent provisions of the Lease. Except as expressly modified, the Lease remains in full force.

IV. REPRESENTATIONS & WARRANTIES

1. Mutual Authority
   Each party represents that it has full authority to enter into and perform this Addendum.

2. Compliance with Law
   Landlord warrants that the Late Fee structure herein is believed to be compliant with current South Dakota landlord-tenant law and does not exceed statutory or common-law limits.

3. Tenant Acknowledgment
   Tenant acknowledges receipt of this Addendum and the attached statutory notice form, and has had an opportunity to consult counsel.

V. COVENANTS & RESTRICTIONS

1. Tenant Covenant
   Tenant shall timely pay all Rent and Late Fees without prior demand, subject to the Grace Period.

2. Landlord Covenant
   Landlord shall not assess any additional charge for late payment other than the Late Fee expressly set forth herein unless otherwise permitted by Governing Law and agreed in a subsequent written amendment.

3. Notice of Change in Law
   If Governing Law is amended to impose stricter limitations (e.g., mandatory cap reductions), this Addendum shall automatically conform to the minimum required by law, and Landlord shall provide Tenant written notice of the change within thirty (30) days.

VI. DEFAULT & REMEDIES

1. Events of Default
   Failure to (a) pay Rent within the Grace Period or (b) pay any Late Fee within three (3) Business Days after written demand constitutes a default under both this Addendum and the Lease.

2. Cure Period
   Tenant may cure a monetary default by paying all outstanding sums (Rent, Late Fees, and any court-awarded costs) within the time stated in the applicable statutory notice.

3. Remedies
   a. Upon default, Landlord may pursue all remedies permitted under the Lease and Governing Law, including but not limited to eviction pursuant to S.D. Codified Laws ch. 21-16.
   b. Tenant shall be liable for Landlord’s reasonable attorney’s fees and court costs to the extent allowed by law and awarded by a court of competent jurisdiction.

VII. RISK ALLOCATION

1. Indemnification
   No indemnification obligations are created by this Addendum.

2. Limitation of Liability
   Any limitation of liability contained in the Lease applies equally to this Addendum, provided that such limitation does not abrogate statutory tenant remedies.

3. Force Majeure
   Neither party shall be liable for failure to perform monetary or other obligations caused by events constituting force majeure, except that Tenant’s obligation to pay Rent and Late Fees is never excused by force majeure unless expressly required by statute.

VIII. DISPUTE RESOLUTION

1. Governing Law
   This Addendum and any dispute arising hereunder are governed by the laws of the State of South Dakota without regard to conflict-of-law principles.

2. Forum Selection
   Exclusive jurisdiction and venue lie in the [COUNTY] Housing Court or other court of competent jurisdiction in the State of South Dakota.

3. Arbitration
   The parties expressly exclude arbitration.

4. Jury Trial
   Nothing in this Addendum constitutes a waiver of any constitutional right to a jury trial.

5. Injunctive Relief
   Landlord retains all equitable remedies, including eviction and injunctive relief, as permitted by law.

IX. GENERAL PROVISIONS

1. Entire Agreement
   This Addendum, together with the Lease and any prior written addenda, constitutes the entire agreement with respect to Late Fees.

2. Amendment & Waiver
   No amendment or waiver is effective unless in a writing signed by both parties. Failure to enforce any provision is not a waiver of future enforcement.

3. Severability
   If any provision is held unenforceable, it shall be severed and the remaining provisions enforced to the fullest extent permitted.

4. Assignment
   Rights and obligations hereunder inure to the benefit of and bind the parties and their lawful successors and assigns, subject to any assignment restrictions in the Lease.

5. Counterparts & Electronic Signatures
   This Addendum may be executed in counterparts, each of which is an original. Signatures delivered by electronic means (e.g., PDF or DocuSign) are binding and admissible.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the parties have executed this Addendum as of the Effective Date.

[ADD additional signature blocks if multiple tenants.]

EXHIBIT A – FORM OF NOTICE OF LATE FEE & THREE-DAY NOTICE TO QUIT

[// GUIDANCE: Attach a customizable form combining (i) itemized statement of unpaid Rent, Late Fee, and total amount due; (ii) statutory three-day notice language required by S.D. Codified Laws § 21-16-2; (iii) proof of service section.]

[// GUIDANCE: Counsel should confirm current statutory citations and any municipal ordinances (e.g., Sioux Falls, Rapid City) that impose stricter rent-control or late-fee limitations before finalizing.]