Motion to Discharge Lis Pendens in South Dakota

“Our statute relating to the notice of lis pendens and filing of such notice is section 2334, Rev. Code 1919; which provides:

‘In an action affecting the title to real property the plaintiff, at the time of filing the complaint or at any time afterwards, or the defendant when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer or at any time afterwards, if the same be intended to affect real property, may file for record with the register of deeds of each county in which the real property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the real property in that county affected thereby; from the time of filing only shall be pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.’”

(Houck v. Hurt, 60 S.D. 570, 575 [S.D. 1932] quoting S.D. section 2334, Rev. Code 1919.)

Limitations of Lis Pendens Doctrine

“The statute limits the doctrine of constructive notice through the medium of the filing of a lis pendens to actions affecting the title to real property. The filing of a lis pendens has no application to personal property.” (Houck v. Hurt, 60 S.D. 570, 575 [S.D. 1932] citing Calkins v. First National Bank, 20 S.D. 466, 107 N.W. 675.)

Discharge of Lis Pendens Through Entry of Judgment

Note that under S.D. Codified Laws § 43-30 app. 6-06, “[t]he entry of judgment in an action for which a lis pendens has been filed discharges the lis pendens.” (S.D. Codified Laws § 43-30 app. 6-06.)

As for the statute of limitations, “[a] title examiner may disregard a lis pendens of record more than ten years.” (S.D. Codified Laws § 43-30 app. 6-07.)

Automatic Stay of Lis Pendens Release

“Absent a showing of good cause, the circuit court’s final judgment ordering release of the lis pendens was automatically stayed for thirty days.” (Healy v. Osborne, 909 N.W.2d 725, 728 [S.D. 2018] citing SDCL 15-6-62(a) [“Except as stated herein [...] or as otherwise ordered by the court for good cause shown ... no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of thirty days after its entry.”])

Current as of March 01, 2024 | Updated by Trellis Law Content Team