South Dakota Warranty Deed Form

What is a South Dakota Warranty Deed Form?

A South Dakota warranty deed is a legal document used to transfer ownership of South Dakota real estate.¹ A seller who uses a warranty deed (the deed’s grantor) guarantees that the deed will transfer good title to the property. The grantor promises to defend the buyer (grantee) against any claims made against the property by third parties.

In South Dakota, warranty deeds are the most commonly used type of deed for real estate sales. A warranty deed provides the buyer the highest level of protection because the warranty covers all possible third-party claims against the property, even if a claim existed before the seller acquired the property.

How Warranty of Title Works in South Dakota

A warranty of title is a legal guarantee that the seller (grantor) gives to the buyer (grantee) when transferring real estate by deed. The warranty consists of one or more promises—called covenants of title—from the seller. A South Dakota real estate transfer that provides a full warranty includes the following covenants from the seller:²

• Covenant of seizin (also spelled seisin). The seller holds complete title to the property and has the right to transfer title to the property.
• Covenant against encumbrances. The property is free from all encumbrances—such as liens, mortgages, or other third-party claims on the property’s title—not disclosed in the deed.
• Covenant of quiet enjoyment. The new owner will enjoy undisturbed possession of the property.
• Covenant of general warranty. The seller will defend the new owner’s title against any adverse third-party claims.

South Dakota has a statutory form warranty deed.³ The four covenants listed above are implied in a deed that relies on the statutory form.⁴ South Dakota law also provides a model warranty clause for including a full warranty expressly within a deed.⁵ The statutory warranty clause incorporates the same four covenants and adds a covenant of further assurance—the seller’s covenant to take any actions or sign any documents needed to confirm the new owner’s title.

How Warranty of Title Protects the New Owner

A warranty of title protects the new owner by placing the risk of title problems on the buyer. If any problems with the property’s title are discovered after the sale, the seller is legally required to address the problem. That might mean taking steps to remove a lien on the property, defending the title against a third-party claim, or compensating the buyer for the financial losses that a title problem causes. The new owner can sue the seller for breach of warranty if the seller fails to meet his or her legal requirements under the warranty.⁶

A real estate purchaser can supplement the protection provided by a warranty deed by purchasing

title insurance. A title insurance policy covers a property owner’s risk of financial loss as a result of defects in the property’s title that existed as of the date of the policy. If a title problem emerges, the title insurance company will either work to correct the issue or compensate the buyer for any losses suffered as a result of the problem. Title insurance protects against many of the same issues as a warranty of title and ensures that there is a reliable source of payment to compensate the owner if a problem is discovered.

Other Names for a South Dakota Warranty Deed Form

A warranty deed is a common type of deed used in many states across the United States. Warranty deeds are sometimes called general warranty deeds to distinguish them from special warranty deeds or limited warranty deeds—which provides a more limited warranty of title.

Some states use alternate names—such as deed with full covenants—for deeds that offer a complete warranty of title. The name statutory warranty deed can refer to a deed with a complete warranty of title, but a statutory warranty deed provides a lesser warranty in some states.

How Do South Dakota Warranty Deed Forms Relate to Other Forms of Deeds?

In South Dakota, there are several types of deeds that can be used to transfer property. The deed types are distinguished by the warranty of title they provide (or do not provide). Warranty deeds provide the strongest warranty, and each of following deeds provide the new owner less protection from title problems.

• South Dakota quitclaim deed without covenants. A South Dakota quitclaim deed without covenants—also called a quitclaim deed—transfers whatever interest the seller has with no warranty.⁷ Quitclaim deeds—which place all risk of title problems on the new owner—are often used when transferring property between family members or in other transfers without consideration.
• South Dakota quitclaim deed with covenants. A South Dakota quitclaim deed with covenants guarantees that the seller has not transferred the property to anyone else and that the seller did nothing to cause problems with the property’s title.⁸ The seller bears the risk of title problems for issues that arose while the seller held title, and the new owner bears the risk for title problems from before the seller acquired the property.

South Dakota Warranty Deeds and Other South Dakota Deed Forms

In South Dakota, there are several types of deeds that can be used for estate planning purposes. Estate-planning deeds are distinguished by how they allow property to avoid probate—not by their warranty of title.

• South Dakota life estate deed. A life estate deed allows the owner keep property for life and to transfer future ownership to a remainder beneficiary who will take title when the owner dies. The remainder beneficiary take title automatically with no need for probate upon the owner’s death. After recording a life estate deed, the owner can transfer or sell complete ownership only with the beneficiary’s consent.¹⁰
• South Dakota transfer-on-death deed. A South Dakota transfer-on-death deed —also called a TOD deed or a beneficiary deed—allows the owner to name a beneficiary to receive the property upon the owner’s death without the need for probate.¹¹ A big advantage of TOD deeds is that the owner has the right to revoke or amend the TOD deed or to sell or transfer the property without involving the beneficiary.

Common Uses of South Dakota Warranty Deed Forms

A South Dakota warranty deed is the most commonly used type of deed for real estate sales. Common uses for a South Dakota warranty deed include:

• Sales of residential and commercial properties. A warranty deed is typically used in real estate transactions in which a buyer pays fair market value in exchange for the property.
• Mortgages and refinancing. When a property is mortgaged or refinanced, a warranty deed may be used to ensure the lender’s interest is protected.

Although a warranty deed can also be used to transfer ownership of real estate between family members or in other non-sale situations, a quitclaim deed is often a preferred choice in those scenarios. Since the grantor is not being compensated for the transfer, he or she may not be willing to assume the risk associated with a warranty deed. A quitclaim deed allows the transferor to give the property to the recipient with less risk than a warranty deed.

How to Create a South Dakota Warranty Deed Form

As with any deed, a South Dakota warranty deed should be customized to reflect the specific terms and conditions of the transaction. Reliance on fill-in-the-blank forms can lead to invalid documents and future title issues.

A South Dakota warranty deed must meet all South Dakota deed requirements. It should be formatted correctly and include a title, a legal description of the property being transferred, and the names of the grantor and grantee. A warranty deed must have the language needed to create the right warranty of title and any other special terms or conditions of the transfer. South Dakota warranty deeds usually state that the current owner “grants, conveys, and warrants” the property to the new owner.¹²

The grantor must sign and date the deed in the presence of a notary public, who will notarize the grantor’s signature. The deed is recorded in the register of deeds in the county where the property is located.

1. See S.D. Cod. Laws § 43-25-5.
2. S.D. Cod. Laws § 43-25-6.
3. S.D. Cod. Laws § 43-25-5.
4. S.D. Cod. Laws § 43-25-6.
5. S.D. Cod. Laws § 43-26-3.
6. Holzworth v. Roth, 101 NW2d 393 (SD 1960).
7. S.D. Cod. Laws § 43-25-7.
8. S.D. Cod. Laws § 43-25-11.
9. S.D. Cod. Laws § 43-25-10.
10. S.D. Cod. Laws § 43-8-1.
11. S.D. Cod. Laws § 29A-6-403.
12. S.D. Cod. Laws § 43-25-5.