South Dakota Notice of Furnishing Labor or Materials

Introduction

Key Things to Know

1. 1

   South Dakota calls the document a notice of furnishing labor or materials, and Section 44-9-51 prints the job-site sign that announces the duty: the contractor on this project has filed a notice of project commencement at the county courthouse, and any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of Section 44-9-53 before filing liens in connection with this project.

2. 2

   Section 44-9-53 is conditional. It begins with the words if the provisions of Sections 44-9-50 and 44-9-51 are first invoked, so the duty exists only where a notice of project commencement was filed with the register of deeds and the contractor name, address and location notice were posted at the site.

3. 3

   Sixty days, counted from the END of your involvement. The notice must be made not later than sixty days after doing the last of the work, or furnishing the last item of skill, services, material or machinery.

4. 4

   Two recipients in one sentence: certified or registered mail to the contractor identified in the notice of project commencement, and a copy provided to the owner of record. The contractor's identity is taken from that filed notice, which is why pulling it from the register of deeds comes before drafting.

5. 5

   Keep the post office receipt, because South Dakota makes it public. Section 44-9-53 requires the post office receipt for mailing the notice to be attached to the lien and filed in the office of the register of deeds.

6. 6

   Section 44-9-53 states its own reward and its own exemption. A person who gives notice in accordance with the section may extend a lien as provided in Section 44-9-15, and the section does not apply to claims of individual laborers when the amount of their lien is less than two thousand dollars.

7. 7

   South Dakota also gives suppliers a separate lever that needs no notice of project commencement. Under Section 44-9-10 a sworn account and notice of claim may be served on the owner at any time, and the owner must then withhold from the contractor enough of the contract price to meet the claims served.

South Dakota Requirements for Preliminary Notice

• The Posted Location Notice Wording Section 44-9-51 Dictates

  Any person filing a notice of project commencement must post the contractor's name and address and a location notice at the job site, and Section 44-9-51 fixes the location notice text: the contractor on this project has filed a notice of project commencement at the county courthouse, and any sub-subcontractor and any supplier to a subcontractor shall comply with the notice provisions of Section 44-9-53 before filing liens in connection with this project.

• Sixty Days After the Last Work or the Last Item Furnished

  Section 44-9-53 requires the notice to be made not later than sixty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery. South Dakota counts from the end of the claimant's involvement rather than from the first delivery, so a supplier making scattered deliveries has a clock that resets until the final one.

• Certified or Registered Mail to the Named Contractor, Copy to the Owner of Record

  Section 44-9-53 requires notice by certified or registered mail to the contractor identified in the notice of project commencement, and a copy provided to the owner of record. The first recipient is defined by the filing at the register of deeds rather than by the claimant's own understanding of the chain, so pull that filing first. Section 44-9-50 requires it to carry the owner or developer's name and address and the legal description of the property.

• The Duty Exists Only If Sections 44-9-50 and 44-9-51 Were Invoked

  Section 44-9-53 opens with the words if the provisions of Sections 44-9-50 and 44-9-51 are first invoked. Section 44-9-50 makes the notice of project commencement permissive: any owner, any person entering into a direct agreement with the owner, or the owner's duly authorized agent or representative may file it with the register of deeds within thirty days of the commencement of work, with the fee set by subdivision 7-9-15(3). Where no filing and no job-site posting exist, the notice of furnishing duty does not arise.

• Six Entries, With Specifically Fabricated Materials Stated Separately

  Section 44-9-53 requires the claimant's name; the name of the person the claimant contracted with or was employed by; a description of the labor, services or materials and the contract price or value, with materials specifically fabricated by a person other than the one giving notice and their contract price or value stated separately; a project description sufficient for identification; the date the first and last item was actually furnished or scheduled to be furnished; and the amount claimed to be due, if any.

• The Post Office Receipt Is Attached to the Lien and Filed Publicly

  Section 44-9-53 requires the post office receipt for mailing the notice to be attached to the lien and filed in the office of the register of deeds. The proof of mailing therefore becomes part of the public record of the claim rather than a file copy. South Dakota prescribes no separate affidavit or proof of service declaration for this notice.

• Without the Notice There Is No Entitlement, and Laborers Under $2,000 Are Exempt

  Section 44-9-53 provides that no sub-subcontractor or supplier to subcontractors is entitled to extend a lien created under subdivision 44-9-1(1) unless the notice was first given, and then states the positive side: any person who gives notice in accordance with the section may extend a lien as provided in Section 44-9-15. The same section closes with an exemption, that it does not apply to claims of individual laborers when the amount of their lien is less than two thousand dollars.

• The Separate Sworn Account That Makes the Owner Withhold

  Independently of the notice of furnishing, Section 44-9-10 lets any person furnishing items for which a lien may be claimed under Section 44-9-1 serve on the owner, at any time, a sworn account and notice of claim showing the items, amounts and the dates furnished, after which the owner shall withhold from the contractor so much of the contract price as is necessary to meet the claims served. Section 44-9-11 gives the contractor fifteen days after receipt of a copy to give the owner written notice of a dispute, failing which the contractor is considered as assenting and the owner may pay the claimant and deduct the amount. Section 44-9-13 makes misapplying construction funds with intent to defraud theft under Section 22-30A-17.