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CHAPTER 15-3

ADVERSE POSSESSION AND LIMITATION OF ACTIONS TO RECOVER REAL ESTATE

15-3-1      Seizin or possession within twenty years required for action to recover real property or possession.
15-3-2      Seizin or possession within twenty years required for cause of action or defense based on title to real property.
15-3-3      Limitation of actions based on entry on real estate.
15-3-4      Limitation of actions by state based on title to real property.
15-3-5      Grantee of state limited by limitations applicable to state.
15-3-6      Limitation of actions to recover real property after invalidation of state grant.
15-3-7      Possession of real property presumed from legal title--Occupation by another presumed subordinate to legal title.
15-3-8      Tenant's possession deemed that of landlord--Continuation after termination of tenancy.
15-3-9      Possessory right not impaired by descent on death of person in possession.
15-3-10      Twenty years' possession under written instrument or judgment deemed adverse possession--Tract divided into lots.
15-3-11      Acts constituting adverse possession based on written instrument or judgment.
15-3-12      Actual occupation required for adverse possession under claim other than written instrument or judgment.
15-3-13      Acts constituting adverse possession under claim other than written instrument or judgment.
15-3-14      Tolling of statute during disability--Time for commencement of action after removal of disability.
15-3-15      Vesting of title by possession and payment of taxes for ten years under color of title--Continuation of possession and tax payment by successor in interest.
15-3-16      Vesting of title to unoccupied land by payment of taxes for ten years under color of title--Continuation of tax payment by successor in interest.
15-3-17      Tax payment vesting provisions not applicable to public lands or religious or charitable societies.
15-3-18      Tax payment vesting provisions not applicable against person under disability--Time for commencement of action after removal of disability .
15-3-19      Time allowed for assertion of irregularities in notice involving real property--Persons under disability.
15-3-20      Partition fence agreement.
15-3-21      Real estate taxes following determination of adverse possession.
15-3-22      Existing utility lines not affected.


     15-3-1.   Seizin or possession within twenty years required for action to recover real property or possession. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.

Source: SDC 1939 & Supp 1960, § 33.0217.


     15-3-2.   Seizin or possession within twenty years required for cause of action or defense based on title to real property. No cause of action or defense to an action founded upon the title to real property or to rents or services out of the same, shall be effectual unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within twenty years before the committing of the act in respect to which such action is prosecuted or defense made.

Source: SDC 1939 & Supp 1960, § 33.0218.


     15-3-3.   Limitation of actions based on entry on real estate. No entry upon real estate shall be deemed sufficient or valid as a claim unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued.

Source: SDC 1939 & Supp 1960, § 33.0219.


     15-3-4.   Limitation of actions by state based on title to real property. This state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the state to the same, unless:
             (1)      Such right or title shall have accrued within forty years before any action or other proceeding for the same shall be commenced; or unless
             (2)      The state, or those from whom it claims, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.

Source: SDC 1939 & Supp 1960, § 33.0214.


     15-3-5.   Grantee of state limited by limitations applicable to state. No action shall be brought for, or in respect to real property, by any person claiming by virtue of grants from the state unless the same might have been commenced as specified in § 15-3-4, in case such grant had not been issued or made.

Source: SDC 1939 & Supp 1960, § 33.0215.


     15-3-6.   Limitation of actions to recover real property after invalidation of state grant. When grants of real property shall have been issued or made by the state and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, an action for the recovery of the premises so conveyed may be brought either by the state or by any subsequent grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period.

Source: SDC 1939 & Supp 1960, § 33.0216.


     15-3-7.   Possession of real property presumed from legal title--Occupation by another presumed subordinate to legal title. In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.

Source: SDC 1939 & Supp 1960, § 33.0220.


     15-3-8.   Tenant's possession deemed that of landlord--Continuation after termination of tenancy. Whenever the relation of landlord and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord until the expiration of twenty years from the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. Such presumptions shall not be made after the periods herein limited.

Source: SDC 1939 & Supp 1960, § 33.0225.


     15-3-9.   Possessory right not impaired by descent on death of person in possession. The right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.

Source: SDC 1939 & Supp 1960, § 33.0226.


     15-3-10.   Twenty years' possession under written instrument or judgment deemed adverse possession--Tract divided into lots. Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises under such claim for twenty years, the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots the possession of one lot shall not be deemed a possession of any other lot of the same tract.

Source: SDC 1939 & Supp 1960, § 33.0221.


     15-3-11.   Acts constituting adverse possession based on written instrument or judgment. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment, or a decree, land shall be deemed to have been possessed and occupied in the following cases:
             (1)      Where it has been usually cultivated or improved;
             (2)      Where it has been protected by a substantial inclosure;
             (3)      Where, although not inclosed, it has been used for the supply of fuel or of fencing timber for the purposes of husbandry, or the ordinary use of the occupant; or
             (4)      Where a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed according to the usual course and custom of the adjoining country shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

Source: SDC 1939 & Supp 1960, § 33.0222.


     15-3-12.   Actual occupation required for adverse possession under claim other than written instrument or judgment. Where it shall appear that there has been an actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.

Source: SDC 1939 & Supp 1960, § 33.0223.


     15-3-13.   Acts constituting adverse possession under claim other than written instrument or judgment. For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, or judgment, or decree, land shall be deemed to have been possessed and occupied in the following cases only:
             (1)      Where it has been protected by a substantial inclosure; or
             (2)      Where it has been usually cultivated or improved.

Source: SDC 1939 & Supp 1960, § 33.0224.


     15-3-14.   Tolling of statute during disability--Time for commencement of action after removal of disability. If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or service out of the same, be, at the time such title shall first descend or accrue, either:
             (1)      Within the age of twenty-one years;
             (2)      Mentally ill; or
             (3)      Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense for a term less than for life;
the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability, but such action shall not be commenced, or entry, or defense made after that period.

Source: SDC 1939 & Supp 1960, § 33.0227.


     15-3-15.   Vesting of title by possession and payment of taxes for ten years under color of title--Continuation of possession and tax payment by successor in interest. Every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall have continued for ten successive years in such possession, and shall also during said time have paid all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title. All persons holding under such possession by purchase, devise, or descent before said ten years shall have expired, and who shall have continued such possession and payment of taxes as aforesaid so as to complete said term of ten years of such possession and payment of taxes, shall be entitled to the benefit of this section.

Source: SDC 1939 & Supp 1960, § 33.0228.


     15-3-16.   Vesting of title to unoccupied land by payment of taxes for ten years under color of title--Continuation of tax payment by successor in interest. Whenever a person having a color of title made in good faith to vacant and unoccupied land, shall have paid all taxes legally assessed thereon for ten successive years, he shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his paper title. All persons holding under such taxpayer by purchase, devise, or descent before said ten years shall have expired, and who shall have continued to pay taxes as aforesaid so as to complete the payment of taxes for said term of ten years, shall be entitled to the benefit of this section.

Source: SDC 1939 & Supp 1960, § 33.0229.


     15-3-17.   Tax payment vesting provisions not applicable to public lands or religious or charitable societies. The provisions of §§ 15-3-15 and 15-3-16 shall not extend to school lands or to lands belonging to the United States or this state, or to religious or charitable societies, or to lands held for a public purpose.

Source: SDC 1939 & Supp 1960, § 33.0230.


     15-3-18.   Tax payment vesting provisions not applicable against person under disability--Time for commencement of action after removal of disability. Sections 15-3-15 and 15-3-16 shall not extend to lands or tenements to which there is an adverse title, the holder of which is, at the expiration of said ten years, under the age of twenty-one years, mentally ill, or imprisoned for a criminal offense for a term less than life; provided, such person shall within three years after the removal of such disability begin an action to recover possession of such lands, or to establish his title thereto, and prosecute the same to judgment with due diligence.

Source: SDC 1939 & Supp 1960, § 33.0230.


     15-3-19.   Time allowed for assertion of irregularities in notice involving real property--Persons under disability. Whenever any notice required by law to be served in any judicial or other proceeding authorized by law affecting the title to any real property in this state upon any person having or claiming to have any title to, interest in, or lien upon such real property heretofore has been or hereafter shall be personally served upon such person either within this state or elsewhere, and proof of such service made and filed, notwithstanding such notice may have been or may be defective in form, if it described or shall describe the real property intended to be affected with sufficient certainty to inform the person so served of the tract intended, and to enable a person of ordinary intelligence to understand the object and effect of the notice, no objection to the sufficiency or form of the notice, or to the form of proof of service shall be considered in any action or proceeding involving the title to the real property affected thereby unless the objection be properly made and advantage sought to be taken of it within three years from the personal service of the same. Nothing herein contained shall operate to extend the time for doing any of the acts herein mentioned where the failure to make such objection would, independently of this section, create an estoppel to such objection. Any person under disability at the time of the service of such notice may make objection to the regularity or sufficiency of the same at any time within three years from the removal of the disability.

Source: SDC 1939 & Supp 1960, § 33.0231.


     15-3-20.   Partition fence agreement. Adjacent landowners in an unincorporated area of the state may agree to waive the provisions of this chapter. The agreement may, but need not, be in the following form:
This document prepared by:
Name: ________________________
Address: ______________________
     ______________________
Telephone: ____________________
PARTITION FENCE AGREEMENT
This Agreement is made this __________ day of _____________, 20 _____.
WHEREAS, _________________________, and _____________________________
is/are the owner(s) of certain real property described as follows:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
designated hereafter as "Tract A"; and
WHEREAS, ___________________________, and ___________________________
is/are the owner(s) of real property adjoining the above-described property and described as follows: _________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
designated hereafter as "Tract B"; and
WHEREAS, there is a partition fence separating the property described above.
NOW, THEREFORE, it is hereby agreed as follows:
    The partition fence separating Tract A and Tract B is for the mutual convenience of the owners. The partition fence does not necessarily reflect the actual or true boundary line separating Tract A and Tract B. The partition fence is placed and constructed to accommodate surface terrain rather than identify the actual legal property lines. To the extent that the partition fence deviates from the legal property line, the owners agree that neither holds the possession adversely to the other as contemplated in South Dakota Codified Laws chapter 15-3. Due to the cost of replacing and repositioning the partition fence, neither the owner of Tract A or the owner of Tract B at this time desires to do so.
    Nothing in this agreement restricts the right of the owner of either tract in the future, to exercise the right to have the partition fence repaired or repositioned upon the legal property line. Ownership and right of possession of the real property and the real estate tax attendant to the real property are governed by the records in the Register of Deeds for ______________ County.
Dated this ________ day of ___________, 20 ____.
_____________________________ ________________________________
Owner, Tract A Owner, Tract A
County of _________________
State of ___________________
On this _______ day of ____________, 20 ____, before me, the undersigned officer, personally appeared __________________ and __________________, Owners of Tract A above described, known to me or satisfactorily proven to be the person(s) whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public, South Dakota
My commission expires: _______________
Notary Printed Name: __________________
Dated this _____ day of __________, 20 _____.
________________________________ __________________________________
Owner, Tract B Owner, Tract B
County of _______________________
State of _________________________
On this ____ day of __________, 20 ____, before me, the undersigned officer, personally appeared ___________________________ and ________________________________, Owners of Tract B above described, known to me or satisfactorily proven to be the person(s) whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public, South Dakota
My commission expires: _______________
Notary Printed Name: __________________

Source: SL 2018, ch 125, § 1.


     15-3-21.   Real estate taxes following determination of adverse possession. Upon a judicial determination of adverse possession the adjacent landowner acquiring the ownership and right to possession pursuant to this chapter becomes immediately liable for all future real estate taxes on the property. The previous owner may petition a circuit court to determine the precise acreage for which responsibility for real property taxes is transferred. The circuit court may assess reasonable costs including the cost of surveying the property.

Source: SL 2018, ch 125, § 2.


     15-3-22.   Existing utility lines not affected. No agreement or judicial determination of adverse possession shall affect existing utility lines.

Source: SL 2018, ch 125, § 3.


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