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CHAPTER 43-28

RECORDING OF INSTRUMENTS

43-28-1      Recording of instruments affecting real estate with register of deeds.
43-28-2      Instruments which may be recorded without acknowledgment or further proof.
43-28-3      Instruments recorded without acknowledgment or further proof--Use of certified copies as evidence.
43-28-4      Recording of affidavits, orders, appointments, minutes of meetings, and proceedings in bankruptcy to correct instruments affecting title to real property--Use as evidence.
43-28-4.1      Affidavits stating facts relating identity of a party recorded.
43-28-5      Presumption that execution of certificate attached to copy of instrument eligible for record was made by authorized officer.
43-28-6      Prior recording of instruments validated--Rights barred by no action.
43-28-7      Authorities without state have no jurisdiction of real property within state.
43-28-8      Instruments which must be acknowledged or proved before record--Certification.
43-28-9      Acknowledgment of instrument by married woman.
43-28-10      Recording of instrument proved and certified by handwriting.
43-28-10.1 to 43-28-10.6.      Repealed.
43-28-11      Deposit of acknowledged or proved and certified instrument for record as recording--Endorsement of amount of fee.
43-28-12      Separate recording of absolute grants and mortgages.
43-28-13      Law governing execution, acknowledgment, proof, form, or record of conveyance made before 1939.
43-28-14      Validity of unrecorded instrument.
43-28-15      Constructive notice of execution of instrument affecting real property to purchasers or encumbrancers subsequent to recording.
43-28-16      Notice imparted by instruments defectively executed or acknowledged or describing unplatted property prior to December 31, 1988--Rights of purchasers or encumbrancers.
43-28-17      Priority of first recorded conveyance of real property--Conveyance defined.
43-28-18      Recording of instrument containing power affecting real property--Instrument of revocation must be recorded in the same office.
43-28-19      Recitals as to marital status, homestead status, or identity of parties in instruments affecting title to real property--Evidentiary effect.
43-28-20      Record of death of person deceased twelve years or more as evidence of death and date of death--Requirements and effect of recording.
43-28-21      Mailing address of grantee required for recording real estate conveyance.
43-28-22      Real estate conveyance by fiduciary construed as made for purposes of administration--Time limit to enforce rights to property in trust, estate, or guardianship.
43-28-23      Format standards for real estate documents recorded with the register of deeds.
43-28-24      Definitions related to identity information.
43-28-25      Document preparers prohibited from including personally identifiable information.
43-28-26      Certain documents exempt.
43-28-27      Register of deeds to post notice.
43-28-28      Noncomplying documents not rejected for recording.


     43-28-1.   Recording of instruments affecting real estate with register of deeds. Any instrument affecting the title to or possession of real property may be recorded as by law provided.
     Instruments entitled to be recorded must be recorded by the register of deeds of the county in which the real property affected thereby is situated.

Source: CivC 1877, §§ 647, 651; SL 1879, ch 47, § 1; CL 1887, §§ 3268, 3272; RCivC 1903, §§ 961, 965; SL 1905, ch 149; RC 1919, §§ 569, 573; SL 1921, ch 352; SL 1923, ch 253; SL 1925, ch 265; SDC 1939, § 51.1601.


     43-28-2.   Instruments which may be recorded without acknowledgment or further proof. The following instruments may be recorded without acknowledgment or further proof:
             (1)      Judgments affecting the title to or possession of real property, authenticated by the certificate of the clerk of the court in which such judgments were rendered;
             (2)      Patents to real estate from the United States and final certificates from the United States land offices, or copies of the same duly certified by the commissioner of the general land office or his successor;
             (3)      Patents issued by the State of South Dakota or copies of the same duly certified by the commissioner of school and public lands;
             (4)      Contracts for the sale of lands of the State of South Dakota, or copies of the same duly certified by the commissioner of school and public lands;
             (5)      Notices of pendency of action signed by attorneys of record in the action in which such notices are entitled;
             (6)      Affidavits of identity of persons or places as to the homestead character of real estate as provided in § 43-28-4.1;
             (7)      Certificates of discharge of veterans as defined by § 33A-2-1 and of all persons who have served in the military forces of the United States or of any of its allies in any war in which the United States has engaged, or copies of such papers certified or authenticated in the manner prescribed by the statutes of the United States or regulations of the military department thereof;
             (8)      Affidavits or other recordable documents specifying the labor or improvements, or compliance requirements arising under federal law on mining claims.

Source: CivC 1877, § 647; SL 1879, ch 47, § 1; CL 1887, § 3268; RCivC 1903, § 961; SL 1905, ch 149; RC 1919, § 569; SL 1921, ch 351; SL 1921, ch 352; SL 1923, ch 253; SL 1925, ch 265; SDC 1939, § 51.1603; SL 1990, ch 351, § 1; SL 1994, ch 338, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 20, eff. Apr. 12, 2011.


     43-28-3.   Instruments recorded without acknowledgment or further proof--Use of certified copies as evidence. Copies of the records of such patents to real estate, final certificates, patents, contracts of sale of the State of South Dakota, and certificates of discharge of veterans and persons in the military service of the United States as specified in § 43-28-2 and of the record of such duly certified copy of any of the same, shall, when duly certified by the custodian of such records, be admissible in evidence without further proof.

Source: CivC 1877, § 647; SL 1879, ch 47, § 1; CL 1887, § 3268; RCivC 1903, § 961; SL 1905, ch 149; RC 1919, § 569; SL 1921, ch 352; SL 1923, ch 253; SL 1925, ch 265; SDC 1939, § 51.1603.


     43-28-4.   Recording of affidavits, orders, appointments, minutes of meetings, and proceedings in bankruptcy to correct instruments affecting title to real property--Use as evidence. In addition to all other instruments affecting the title to real property which are now eligible for record in the office of a register of deeds in this state, the following mentioned original instruments, together with copies of such other original instruments, records, proceedings, entries, orders, decrees, and appointments as are hereinafter mentioned, or portions thereof or excerpts therefrom, if such copies are duly certified to by the person or officer having the legal custody thereof as being true copies thereof, or of portions thereof or excerpts therefrom, are eligible for record in the office of the register of deeds of the county wherein the real property affected is situated, and shall be indexed against such property, and such record, or a copy thereof duly certified to by the register of deeds, or included as a part of a duly prepared and certified abstract of title to real property affected, shall be received and accepted as prima facie evidence of the facts or matters therein contained or set forth:
             (1)      Affidavits of publication of notices of sale, affidavits of sale, and every other instrument executed or used in connection with the making of a sale and conveyance of real property by any board, department, officer, or officers of the State of South Dakota, or of any county, township, school district, or municipality of the State of South Dakota;
             (2)      Affidavits explaining the presence in the deed, mortgage, or other records of any county of any interloping deed, mortgage, or other instrument purporting to have been executed by a person or persons who are not shown of records as having owned any right or title to, interest or estate in or lien upon the real property described in such interloping instrument at the time the same purports to have been executed;
             (3)      Affidavits explanatory of recitals contained in deeds, mortgages, or other instruments to the effect that the real property described in such instruments is subject to certain mortgages or other liens, when such recitals leave in doubt the amount of the indebtedness or the extent to which the real property in question is affected thereby;
             (4)      Copies of orders and appointments made by any officer, department, or board of the State of South Dakota, pursuant to law, appointing any appointive officer, agent, or employee of the State of South Dakota, or of any department thereof, and defining the powers and authority of such officer, agent, or employee;
             (5)      Copies of the original minutes and records of meetings held and official action taken by any board of county commissioners, school board, board of education, township board, county weed and pest board, or governing body of any municipality, within the State of South Dakota, or by the members, officers, or directors of any federal bureau, board, department, or corporation created by, or by authority of, an act of Congress;
             (6)      Copies of orders and appointments made by any federal bureau, board, department, or officer, pursuant to law, appointing receivers for corporations which have been created or organized by, or by authority of, an act of Congress, and copies of any order or other instrument of record defining the powers and authority of any such receiver;
             (7)      Copies of letters testamentary, of administration, and of conservatorship, and of orders appointing receivers and trustees, issued by any court, foreign or domestic, when used to show the authority of a personal representative, conservator, receiver, or trustee to execute a satisfaction or assignment of, or to foreclose, a mortgage or other lien against real property; and the officer who certifies to any such copy as being a true copy of the original instrument on file and in his custody may include in his certificate a statement that the original instrument is, or at any given time was, in full force and effect and unrevoked, which statement shall be accepted as prima facie evidence of the facts so recited;
             (8)      Certified copies of any petition, order, notice, or other document on file in the office of the clerk of any bankruptcy court or any United States district court offered for record by any person.

Source: SL 1949, ch 208, § 1; SDC Supp 1960, § 51.1627; SL 1961, ch 262; SL 1987, ch 317; SL 1993, ch 213, § 234; SL 2005, ch 233, § 1.


     43-28-4.1.   Affidavits stating facts relating identity of a party recorded. An affidavit stating facts touching the identity of a party to any instrument of record or stating that a party to any such instrument is or was single or married, or touching the fact as to whether or not the land mentioned in any such instrument is or was the homestead of a party or parties to such instrument or touching the identification of any plats or subdivisions of any municipal corporation may be recorded in the office of the register of deeds of any county where such instrument is recorded. Such affidavits or certified copies thereof are prima facie evidence of the facts therein stated, and such affidavits, the record thereof, or certified copies thereof are admissible evidence without further proof.

Source: SL 1921, ch 351; SDC 1939 & Supp 1960, § 36.0204; SDCL, § 19-4-4; SL 1979, ch 154, § 16.


     43-28-5.   Presumption that execution of certificate attached to copy of instrument eligible for record was made by authorized officer. In the absence of any showing of record to the contrary, it shall be presumed that any person or officer who purports to have executed a certificate attached to a copy of any instrument or record which is by § 43-28-4 made eligible for record was duly authorized to execute such certificate at the time it purports to have been executed.

Source: SL 1949, ch 208, § 2; SDC Supp 1960, § 51.1628.


     43-28-6.   Prior recording of instruments validated--Rights barred by no action. The record of any instrument or of a certified copy of any instrument, record, proceeding, entry, order, decree, or appointment which was recorded in the office of any register of deeds prior to January 1, 1992, which would have been eligible for record by virtue of any later amendment of § 43-28-4 as of January 1, 1992, is hereby legalized and shall have the same force and effect as if it had been recorded after the later amendment of § 43-28-4.
     If any person has any vested right in any real or personal property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1949, ch 208, § 3; SDC Supp 1960, § 65.0328; SL 1992, ch 307, § 55.


     43-28-7.   Authorities without state have no jurisdiction of real property within state. Nothing in §§ 43-28-4 to 43-28-6, inclusive, shall be construed as granting to any court, government, department, board, or public official of any other state or jurisdiction any jurisdiction whatsoever over real property within this state.

Source: SL 1949, ch 208, § 4; SDC Supp 1960, § 51.1629.


     43-28-8.   Instruments which must be acknowledged or proved before record--Certification. Before an instrument can be recorded, unless it belongs to one of the classes specified in § 43-28-2 or unless its record has been authorized by the judgment or order of a court of competent jurisdiction, its execution must be acknowledged by the person executing it, or if executed by a corporation, by its authorized officer or it must be proved as provided by § 18-4-18 or as provided by §§ 18-4-19 and 18-4-20 and such acknowledgment or proof must be certified as required in chapter 18-4.

Source: CivC 1877, § 648; CL 1887, § 3269; RCivC 1903, § 962; RC 1919, § 570; SDC 1939, § 51.1602; SL 1943, ch 173.


     43-28-9.   Acknowledgment of instrument by married woman. A conveyance or other instrument executed by a married woman has the same effect as if she were unmarried and may be acknowledged in the same manner.

Source: SL 1881, ch 2, § 2; CL 1887, § 3282; RCivC 1903, § 975; RC 1919, § 581; SDC 1939, § 51.1624.


     43-28-10.   Recording of instrument proved and certified by handwriting. An instrument proved and certified pursuant to §§ 18-4-19 and 18-4-20 may be recorded in the proper office, if the original is at the same time deposited therein, to remain for public inspection, but not otherwise.

Source: CivC 1877, § 649; CL 1887, § 3270; RCivC 1903, § 963; RC 1919, § 571; SDC 1939, § 51.1602; SL 1943, ch 173.


     43-28-10.1 to 43-28-10.6.   Repealed by SL 1970, ch 249, § 1


     43-28-11.   Deposit of acknowledged or proved and certified instrument for record as recording--Endorsement of amount of fee. An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the register's office with the proper officer for record.
     The register must in all cases endorse the amount of his fee for the recording on the instrument recorded.

Source: CivC 1877, § 651; CL 1887, § 3272; RCivC 1903, § 965; RC 1919, § 573; SDC 1939, § 51.1601.


     43-28-12.   Separate recording of absolute grants and mortgages. Grants, absolute in terms, are to be recorded in one set of books and mortgages in another.

Source: CivC 1877, § 652; CL 1887, § 3274; RCivC 1903, § 967; RC 1919, § 574; SDC 1939, § 51.1601.


     43-28-13.   Law governing execution, acknowledgment, proof, form, or record of conveyance made before 1939. The legality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument made before July 1, 1939, executed, acknowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and legality, except as to seals, upon the laws in force when the act was performed except as by other statutes expressly provided.

Source: CivC 1877, § 670; CL 1887, § 3292; RCivC 1903, § 985; RC 1919, § 591; SDC 1939, § 51.1618.


     43-28-14.   Validity of unrecorded instrument. An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.

Source: CivC 1877, § 675; CL 1887, § 3297; RCivC 1903, § 990; RC 1919, § 596; SDC 1939, § 51.1622.


     43-28-15.   Constructive notice of execution of instrument affecting real property to purchasers or encumbrancers subsequent to recording. The recording and deposit of an instrument, proved and certified according to the provisions of §§ 18-4-17 to 18-4-20, inclusive, and §§ 43-28-8 and 43-28-10, are constructive notice of the execution of such instrument to all purchasers or encumbrancers subsequent to the recording.

Source: CivC 1877, § 674; CL 1887, § 3296; RCivC 1903, § 989; RC 1919, § 595; SDC 1939, § 51.1621.


     43-28-16.   Notice imparted by instruments defectively executed or acknowledged or describing unplatted property prior to December 31, 1988--Rights of purchasers or encumbrancers. Any instrument affecting real property which was previous to December 31, 1988, copied into the proper book of record kept in the office of any register of deeds shall be deemed to impart after that date, notice of such instrument and its contents to subsequent purchasers and encumbrancers notwithstanding any defect, omission, or informality in the execution of the instrument or in the certificate of acknowledgment thereof, or the absence of such certificate of acknowledgment, or the omission of any notarial or corporate seal from such instrument or the absence of any post office address of any grantee, mortgagee, or assignee of mortgagee, from any instrument, and notwithstanding the fact that the property described in such instrument was not platted as required by chapter 43-21, prior to the recording of such instrument; but nothing herein shall be deemed to affect the rights of purchasers or encumbrancers who became such prior to December 31, 1988.

Source: SL 1961, ch 469; SL 1989, ch 30, § 74.


     43-28-17.   Priority of first recorded conveyance of real property--Conveyance defined. Every conveyance of real property other than a lease for a term not exceeding one year is void as against any subsequent purchaser or encumbrancer including an assignee of a mortgage, lease, or other conditional estate of the same property, or any part thereof in good faith and for a valuable consideration whose conveyance is first duly recorded. The term "conveyance" as used in this section, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered or by which the title to any real property may be affected, except wills and powers of attorney.

Source: CivC 1877, §§ 671, 672; CL 1887, §§ 3293, 3294; RCivC 1903, §§ 986, 987; RC 1919, §§ 592, 593; SDC 1939, § 51.1620; SL 1941, ch 213.


     43-28-18.   Recording of instrument containing power affecting real property--Instrument of revocation must be recorded in the same office. No instrument containing a power to convey or execute instruments affecting real property, which has been recorded, is revoked by any act of the party by whom it was executed unless the instrument containing such revocation is also acknowledged or proved, certified, and recorded in the same office in which the instrument containing the power was recorded.

Source: CivC 1877, § 673; CL 1887, § 3295; RCivC 1903, § 988; RC 1919, § 594; SDC 1939, § 51.1623.


     43-28-19.   Recitals as to marital status, homestead status, or identity of parties in instruments affecting title to real property--Evidentiary effect. Recitals as to the marital status of parties to the instrument, or as to the homestead status of the property, or as to the identity of parties named in instruments in the chain of title, in any conveyance or other instrument affecting title to real estate in this state, which has been, or hereafter shall be, recorded in the office of the register of deeds for the county in which the land is situated, or the record of the instrument, or a certified copy of the record, shall be prima facie evidence of the truth of such recitals.

Source: SL 1968, ch 198.


     43-28-20.   Record of death of person deceased twelve years or more as evidence of death and date of death--Requirements and effect of recording. In all cases in which any person has been deceased for twelve years or more, a copy of the record of the death of such decedent, duly certified by any officer who is required by the laws of the state or country in which such record is made to keep a record of the death of persons occurring within the jurisdiction of such officer, may be recorded in the office of the register of deeds of the county in which any real estate affected is situated. The record of such certified copy shall be prima facie evidence of the death of such person; and the date of such death. In order to identify the property affected by the death of such person, the person causing said certificate to be recorded shall attach thereto an affidavit setting out the legal description of the property involved. This section shall not be treated or construed as exclusive of any other remedy authorized by law or rule of court but shall be cumulative to such other remedy.

Source: SL 1969, ch 277, §§ 1, 2.


     43-28-21.   Mailing address of grantee required for recording real estate conveyance. Every grantee who has a real estate conveyance recorded shall, at the time such conveyance is presented for recording, provide the register of deeds with his current legal mailing address.

Source: SL 1982, ch 298, § 1.


     43-28-22.   Real estate conveyance by fiduciary construed as made for purposes of administration--Time limit to enforce rights to property in trust, estate, or guardianship. All transfers of real property made to, or by, a trust, conservatorship, or estate shall be construed as being made to, or by, the fiduciary for purposes of administration. All such conveyances shall be treated as if the conveyances had been made to, or by, the fiduciary for purposes of administration.
     If any person is construed to retain any right in property due to the fact that the person's conveyance was to a trust, estate, or guardianship, and if no action or proceeding to enforce such right was commenced prior to July 1, 2003, such right shall be forever barred. No action or proceeding so brought involving real property is of any force or effect, or maintainable in any court of this state, unless prior to July 1, 2003, a notice of the pendency of such action was recorded in the office of the register of deeds of the county where the property is located, in accordance with chapter 15-10.

Source: SL 1991, ch 363, § 2; SL 2002, ch 100, § 14.


     43-28-23.   Format standards for real estate documents recorded with the register of deeds. Any real estate document recorded with the register of deeds, except for plats, shall:
             (1)      Consist of one or more individual sheets measuring no larger than 8.5 inches by 14 inches and no smaller than 8.5 inches by 11 inches. No sheet may be attached or affixed to a page that covers up any information or printed material on the document;
             (2)      Be printed, typewritten, or computer generated in black ink and the print type of the document may not be smaller than 10-point type. However, dates, notarial acknowledgments, signatures, and other items may be completed in black or blue ink if the document is predominantly completed in black ink and if the items that are completed in blue ink are sufficiently dark to meet the requirements of subdivision (6);
             (3)      Be on white paper of not less than twenty pound weight;
             (4)      Contain a blank space at the top measuring no less than three inches as measured from the top of the first page. The right half shall be used by the register of deeds for recording information and the left half shall be used by the document preparer as required pursuant to § 7-9-1 and may include other document information. All other margins shall be a minimum of one inch;
             (5)      Have a title prominently displayed at the top of the first page below the blank space referred to in subdivision (4) of this section; and
             (6)      Be sufficiently legible to reproduce a readable copy using the register of deed's current method of reproduction.
     Any document that does not conform to the requirements of subdivisions (1) to (5), inclusive, has the same effect as conforming documents for all recording purposes, including establishing priority. Any affidavit of publication, corner record, survey, certified court or governmental document, and UCC form recorded against real estate is exempt from the provisions of this section. Any plat or survey and certified vital record attached to documents is also exempt from the provisions of this section.
     The provisions of this section do not apply to any real estate document prepared and executed prior to July 1, 2002.

Source: SL 2001, ch 240, § 1; SL 2003, ch 228, § 1; SL 2006, ch 64, § 2; SL 2008, ch 225, § 1; SL 2010, ch 214, § 7; SL 2012, ch 51, § 7.


     43-28-24.   Definitions related to identity information. Terms used in §§ 43-28-25 to 43-28-28, inclusive, mean:
             (1)      "Personally identifiable information," any information that includes one or more of the following specific unique identifiers when combined with an individual's name:
             (a)      A social security number. This term does not, however, include the last four digits of a social security number;
             (b)      Checking, savings, or share account number; or
             (c)      Credit, debit, or charge card number;
             (2)      "Preparer," any person who creates, drafts, edits, revises, or changes the document or instrument that is recorded with the register of deeds. The term, preparer, does not include any person who hires, requires, refers, pays, or requests that the document or instrument be drafted or recorded.

Source: SL 2010, ch 214, § 2.


     43-28-25.   Document preparers prohibited from including personally identifiable information. The preparer of a document or instrument may not include an individual's personally identifiable information in any document or instrument that is prepared and presented for recording in the county office of the register of deeds. This section does not apply to any document or instrument that was executed by an individual prior to July 1, 2010.

Source: SL 2010, ch 214, § 3.


     43-28-26.   Certain documents exempt. The provisions of §§ 43-28-24 to 43-28-28, inclusive do not apply to a state or federal tax lien or release relating to a state or federal tax lien, a military separation or discharge record, a uniform commercial code filing in the county office of the register of deeds, or any governmental certified copy of a document or instrument.

Source: SL 2010, ch 214, § 4.


     43-28-27.   Register of deeds to post notice. The register of deeds shall post a notice in the county office of the register of deeds and on any website provided by the register of deeds. The notice shall include the information provided in §§ 43-28-24 to 43-28-26, inclusive.

Source: SL 2010, ch 214, § 5.


     43-28-28.   Noncomplying documents not rejected for recording. The register of deeds may not reject a document or instrument presented for recording solely because the document or instrument fails to comply with §§ 43-28-24 to 43-28-27, inclusive.

Source: SL 2010, ch 214, § 6.


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