Key Takeaways

  • South Dakota follows the Statute of Frauds requiring real estate contracts to be in writing
  • Valid contracts require offer, acceptance, consideration, legal capacity, and lawful purpose
  • Earnest money should be deposited per contract terms or the first legal banking day after acceptance
  • The South Dakota Association of Realtors provides standardized contract forms
  • Contingencies (financing, inspection, appraisal) must be clearly specified in the contract
Last updated: January 2026

South Dakota Contract Requirements

South Dakota real estate contracts must meet specific legal requirements to be valid and enforceable.

Statute of Frauds

Under South Dakota's Statute of Frauds, contracts for the sale of real property must be:

  • In writing
  • Signed by the party to be charged (or their authorized agent)

Key Point: Oral agreements to sell real estate are generally unenforceable in South Dakota.

Essential Elements of a Valid Contract

ElementDescription
OfferClear proposal with definite terms
AcceptanceUnequivocal agreement to the offer's terms
ConsiderationSomething of value exchanged (usually money)
Legal capacityParties must be competent to contract
Lawful purposeContract cannot be for illegal purposes
In writingRequired for real estate contracts

Common Contract Forms

South Dakota real estate professionals typically use:

FormUse
Purchase AgreementStandard residential purchase contract
Commercial ContractBusiness property transactions
Lease AgreementRental property
Listing AgreementSeller representation
Buyer Agency AgreementBuyer representation

Note: The South Dakota Association of Realtors provides standardized forms used by most licensees.

Earnest Money

Earnest money (also called a good faith deposit) shows the buyer's serious intent:

Handling Requirements

RequirementDetails
Deposit timelinePer contract terms or first legal banking day after acceptance
Where depositedBroker's trust account
Who holdsResponsible broker (not broker associate)
DisbursementPer contract terms or mutual agreement

Important Rules

  • All earnest money and trust funds must be deposited the first legal banking day after acceptance of the contract (or as agreed to in writing by the parties)
  • The responsible broker has authority and responsibility for proper handling
  • Earnest money in co-brokerage transactions shall be held in the broker's trust account

Common Contract Contingencies

Contingencies allow parties to exit the contract if certain conditions aren't met:

Financing Contingency

ElementDetails
PurposeBuyer can cancel if financing not obtained
DeadlineMust apply for loan within specified days
DocumentationMay require denial letter from lender

Inspection Contingency

ElementDetails
PurposeBuyer can inspect property and negotiate repairs
TimelineInspection period specified in contract
OptionsAccept, negotiate repairs, or cancel

Appraisal Contingency

ElementDetails
PurposeProtects buyer if property appraises below price
OptionsSeller reduce price, buyer pay difference, or cancel

Termination of Contracts

Contracts may be terminated by:

MethodDescription
PerformanceBoth parties fulfill obligations
Mutual agreementBoth parties agree to cancel
Contingency not metCondition specified in contract fails
BreachOne party fails to perform
ImpossibilityPerformance becomes impossible

Time is of the Essence

Many South Dakota real estate contracts include a "time is of the essence" clause:

  • Deadlines are strict and legally binding
  • Missing a deadline may constitute breach
  • Extensions require written agreement

Failed Transactions

If a transaction cannot be completed through no fault of the purchaser:

SituationResult
Broker's right to depositNo right to any portion
Commission statusCommission may still be earned, but no right to deposit
Deposit returnReturn to purchaser immediately

Exam Tip: Understand the difference between an executory contract (not yet performed) and an executed contract (fully performed).

Test Your Knowledge

Under South Dakota's Statute of Frauds, which statement is TRUE about real estate contracts?

A
B
C
D
Test Your Knowledge

When must earnest money be deposited in South Dakota?

A
B
C
D
Test Your Knowledge

If a South Dakota transaction fails through no fault of the purchaser, what happens to the earnest money?

A
B
C
D