South Dakota Real Estate Licensing Law

South Dakota Code · 43 sections

The following is the full text of South Dakota’s real estate licensing law statutes as published in the South Dakota Code. For the official version, see the South Dakota Legislature.

SDCL § 36-21A-1

h PRINTER FRIENDLY

36-21A-1. Definitions.

Terms used in this chapter mean:

(1) "Agency," any relationship by which one person acts for or on behalf of a client subject to the client's reasonable direction and control;

(2) "Agency agreement," a written agreement between a broker and a client that creates a fiduciary relationship between the broker and client. The payment or promise of payment of compensation to a responsible broker does not determine whether an agency relationship has been created between any responsible broker or licensees associated with the responsible broker and a client;

(3) "Auction," any public sale of real estate as defined in § 36-21A-11 or business property as defined in subdivision 36-21A-6 (3) at public offering to the highest bidder;

(4) "Auctioneer," any person licensed under this chapter who auctions, offers, attempts, or agrees to auction real estate or business opportunities;

(5) "Broker associate," any broker acting in association with or under the auspices of a responsible broker;

(6) "Client," any person, including a seller, landlord, buyer, or tenant, who has entered into an agency relationship with a real estate licensee;

(7) "Commission," the South Dakota Real Estate Commission;

(8) "Consumer," any person seeking or receiving services from a real estate broker;

(9) "Customer," any party to a real estate transaction who does not have an agency relationship with a licensee;

(10) "Designated broker," any broker licensee designated by a responsible broker to act for the company in the conduct of real estate brokerage;

(11) "In-company transaction," any transaction in which both the seller or landlord and the buyer or tenant receive real estate services from the same broker or from licensees associated with the same broker;

(12) "Licensee," any person holding a license issued pursuant to this chapter;

(13) "Limited agent," any licensee who has a written agency relationship with both the seller and the buyer in the same in-company transaction;

(14) "Person," any individual, corporation, limited liability company, partnership, limited partnership, association, joint venture, or any other entity, foreign or domestic;

(15) "Purchaser," any person who acquires or attempts to acquire or succeeds to an interest in real property;

(16) "Responsible broker," any person holding a broker's license issued pursuant to this chapter who is responsible for the real estate activities conducted by those licensees acting in association with or under the auspices of the responsible broker;

(17) "Served actively," if referring to a real estate salesman or broker associate, having the license on an active status with the commission;

(18) "Single agent," any licensee who represents only one party to a transaction;

(19) "Subdivider," a person who causes land to be subdivided into a subdivision for that person or others, or who undertakes to develop a subdivisio

SDCL 36-21A-10

For the purposes of this chapter, a property manager is any person who for a fee, commission or other valuable consideration or with the intent or expectation of receiving a fee, commission or consideration negotiates or attempts to negotiate the rental, exchange or leasing or any real estate or of the improvements on it; lists real estate exchanges, rentals or leases; collects rents or attempts to collect rents for real estate; or advertises or holds himself out as engaged in any of the foregoing activities.

The term also includes any person who engages in the business of charging a fee or contracting for the collection of a fee in connection with a contract under which he undertakes to prompt the renting or leasing of real estate through its listing in a publication issued primarily for this purpose or through referral of information concerning the rentals or leases.

SDCL 36-21A-101

The commission shall establish and maintain a real estate recovery fund, which shall be used to provide a source for payment of unsatisfied judgments obtained by persons aggrieved by the acts of a person licensed under this chapter. The commission shall maintain one hundred thousand dollars in the fund to be used strictly for the purpose of recovery of unsatisfied judgments against licensees. The moneys deposited in the fund shall be invested by the commission by establishing an account with the state investment council pursuant to chapter 4-5, and all interest and profits derived from such investment, if the fund exceeds one hundred thousand dollars, shall be transferred to the commission's general fund. The interest and profits shall be retained in the fund until its total reaches one hundred thousand dollars.

SDCL 36-21A-102

If at the end of any calendar year the amount remaining in the real estate recovery fund is less than one hundred thousand dollars, every person registering pursuant to this chapter shall pay, in addition to the biennial registration fee, a separate fee in an amount declared sufficient by the commission to restore the balance in the fund to at least one hundred thousand dollars.

SDCL 36-21A-11

For the purposes of this chapter, real estate or realty is any interest or estate in real property or the property's improvements or fixtures whether corporeal, incorporeal, freehold or nonfreehold, and whether the real property is situated in this state or elsewhere, and includes leaseholds, condominiums, air rights and mineral rights.

SDCL 36-21A-12

For the purposes of this chapter, a real estate salesperson is any person who for compensation or consideration is associated with a responsible broker, to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale, lease, rental, or exchange of real property, or of the property's improvements, or any business opportunity or business, or its goodwill, inventory, or fixtures, or any interest therein, or to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale, lease, rental, or exchange of a mobile or manufactured home which has been registered under the provisions of chapters 32-3 to 32-5B, inclusive. A salesperson may perform a broker price opinion or comparative market analysis for purposes of purchase, sale, lease, rental, or exchange of real property.

SDCL 36-21A-12.1

For the purposes of this chapter, a residential rental agent is any person who for compensation or consideration is associated with a real estate broker or property manager to negotiate or attempt to negotiate the rental or leasing of residential property, or collect rents or attempt to collect rents. The Real Estate Commission may promulgate rules pursuant to chapter 1-26 to establish requirements for licensing a residential rental agent.

SDCL 36-21A-12.2

For the purposes of this chapter, the terms, broker price opinion and comparative market analysis, mean an estimate prepared by a licensed broker or salesperson that details the probable selling price or leasing price of a particular parcel of or interest in real property and provides a varying level of detail about the property's condition, market and neighborhood, and information on comparable properties, but does not include an automated valuation model. A broker price opinion or a comparative market analysis is not an appraisal.

SDCL 36-21A-24

The commission may conduct, hold or assist in conducting or holding real estate courses or institutes, and incur and pay the necessary expenses in connection therewith, which courses or institutes shall be open to the licensees. The commission may charge a reasonable fee for such courses and institutes.

SDCL 36-21A-29

This chapter does not apply to the following:

(1) Any person who as a bona fide owner or lessor, performs any of the acts described in §§ 36-21A-6 and 36-21A-12 with reference to property owned, or leased by the person, or to any regular employees thereof, if the acts are performed in the regular course of, or as an incident to the management of the property or investment in the property;

(2) Any public officer while performing the officer's duties;

(3) Any person owning and operating a cemetery and selling lots solely for use as burial plots;

(4) Any person acting as a receiver, trustee, personal representative, guardian or under court order, or while acting under authority of a deed, trust, or will;

(5) Any custodian, janitor, or employee of the owner or manager of a residential building who exhibits a residential unit therein to prospective tenants, accepts applications for leases and furnishes prospective tenants with information relative to the rental of the unit, terms and conditions of leases required by the owner or manager, and similar information;

(6) Any owner, manager, or employee of a business holding a lodging license while engaging in the lodging business;

(7) Any attorney at law, admitted to practice in South Dakota, unless the attorney holds himself or herself out to be in the real estate business or solicits real estate business, in which event the attorney may obtain a real estate license without examination, but the attorney is otherwise subject to the provisions of this chapter;

(8) Any bank, bank holding company or subsidiary thereof, credit union, trust company, savings and loan association, public utility, or any land mortgage or farm loan association organized under the laws of this state or the United States, if engaged in the transaction of business within the scope of its corporate powers as provided by law;

(9) Any person or company whose business practice is to collect a fee or compensation to publish real estate listings in print, electronic, or other media;

(10) Any person holding, in good faith, a duly executed power of attorney from the owner, authorizing the final consummation and execution for the sale, purchase, leasing, or exchange of real property, if the acts are not of a recurrent nature and done with the intention of evading this chapter; and

(11) Any employee of any person enumerated in this section whose principal duties are other than those duties described in §§ 36-21A-6 and 36-21A-12, if engaged in the specific performance of the employee's duties.

SDCL § 36-21A-3

h PRINTER FRIENDLY

36-21A-3. Appraisal or evaluation defined.

For the purposes of this chapter, an appraisal or an evaluation is the act or process of developing an opinion of value of real estate for another and for compensation.

Source: SL 1992, ch 273, § 3; SL 2013, ch 177, § 3; SL 2020, ch 163, § 1.

SDCL 36-21A-30

A license shall be granted only to persons of reputable character who have attained the age of eighteen years; who are competent to transact the business of a licensee in a manner as to safeguard the interest of the public; and whose application for a license has not been rejected, except for the reason that the applicant failed any examination required by this chapter, in this or any other state within one year prior to the date of application; or whose license has not been revoked in this or any other state within five years prior to date of application. No one except a citizen of the United States of America, or resident of South Dakota, is eligible to secure a license as a broker, except as otherwise provided by this chapter.

SDCL 36-21A-30.1

An applicant for a broker associate license must have completed one hundred sixteen class hours of education in a course of study approved by the commission given by instructors approved by the commission or in an independent study or distance education course approved by the commission. The commission may adopt rules, pursuant to chapter 1-26, to specify requirements for the course, qualifications of an instructor, and criteria for an independent study or distance education course.

SDCL 36-21A-30.2

Any broker associate receiving initial licensure as a broker associate after June 30, 2009, shall complete sixty class hours of education in a course of study approved by the commission given by instructors approved by the commission or in an independent study or distance education course approved by the commission. The broker associate shall complete the sixty class hours in prescribed subject matter by the second active renewal deadline with thirty class hours completed during the initial active licensing period and thirty class hours completed during the second active licensing period. The thirty class hours completed during the initial active licensing period and second active licensing period apply towards the continuing education requirements for license renewal. The commission shall promulgate rules, pursuant to chapter 1-26, to specify requirements for the course, qualifications of an instructor, and criteria for an independent study or distance education course.

SDCL 36-21A-31

An applicant for a responsible broker's license shall have served actively for two years as a licensed salesperson or broker associate, or a combination thereof, and shall furnish evidence of completion of twenty-four additional class hours beyond the broker associate level in a course approved by the commission and given by instructors approved by the commission, or in an independent study or distance education course approved by the commission. If the applicant for a responsible broker's license meets all requirements except the requirement for twenty-four additional class hours, the commission or executive director may approve the applicant for a responsible broker's license, conditioned on the applicant furnishing the commission with evidence of completion of the twenty-four additional class hours within six months of the date of the approval. The commission may adopt rules, pursuant to chapter 1-26, to specify requirements for the course of study. Any person licensed as a broker associate under § 36-21A-34.1 shall, in addition to the education requirements of this section, complete the broker examination requirements to qualify as a responsible broker. Any broker licensed prior to July 1, 1996, is exempt from these requirements.

SDCL 36-21A-32

If otherwise qualified, the requirement of two years serving as a salesperson or broker associate may be waived if the applicant for a responsible broker's license certifies that the applicant has been refused association as a salesperson or broker associate by at least three licensed responsible brokers within sixty days before the application. The responsible brokers named in the application as having refused to associate shall be contacted by the commission to determine whether the attempt by the salesperson or broker associate to associate was in good faith. If the commission determines that there were not three good faith applications to associate by the salesperson or broker associate with a responsible broker or that the applicant has refused association with a responsible broker, the two-year period may not be waived. No applicant may be forced to relocate in order to associate with a responsible broker. If the applicant's reason for refusing to associate are the terms of the contract with the responsible broker, the applicant's refusal to associate with the responsible broker does not count as a refusal if the commission decides the contract is unfair to the salesperson or broker associate.

SDCL 36-21A-33

An application may be denied for any one of the following reasons:

(1) The applicant has written insufficient funds checks within the calendar year before application or has written an insufficient funds check for the application;

(2) The applicant has been convicted of a felony or of a misdemeanor involving moral turpitude. If the applicant is a firm, a license may be denied if any partner, associate, director, stockholder, officer, or responsible broker has been convicted of a felony or of a misdemeanor involving moral turpitude;

(3) The applicant has been disciplined by a regulatory agency in relation to activities as a real estate salesperson or broker, broker associate, firm, appraiser, mortgage broker, auctioneer, or any other regulated licensee, including insurance, securities, law, and commodities trading;

(4) The applicant has failed to satisfy the requirements as provided by this chapter;

(5) The applicant has failed the prelicense school examination;

(6) The applicant has not met education requirements;

(7) The applicant made deliberate misstatements, deliberate omissions, misrepresentations, or untruths in the application; or

(8) The applicant has a current and unpaid judgment filed against the applicant.

SDCL 36-21A-34.1

An active licensed nonresident real estate salesperson, who establishes residency in South Dakota, shall upgrade to a broker associate license by completing the following before the current license expires: complete forty hours of prescribed education in a course approved by the commission; submit a broker associate license application; and submit the required license application fee.

A resident real estate salesperson, whose license is on inactive status and who wishes to be an active licensee, shall upgrade to a broker associate license by completing the following prior to activation: complete forty hours of prescribed education in a course approved by the commission before submitting a broker associate license application; submit a broker associate license application; and submit the required license application fee.

The commission shall promulgate rules, pursuant to chapter 1-26, to specify requirements for the course and examination.

SDCL 36-21A-37

No partnership, association, limited liability company, or corporation may perform the services of a real estate broker as described in § 36-21A-6, nor may a licensee associate or work for any partnership, association, limited liability company, or corporation performing any services described in § 36-21A-6, until such time as the partnership, association, limited liability company, or corporation is licensed by the commission.

SDCL 36-21A-38

No license may be granted to a corporation, limited liability company, partnership or association, unless the corporation, limited liability company, partnership, or association designates a responsible broker who will represent the corporation, limited liability company, partnership, or association. A nonlicensed individual may have an ownership interest in any corporation, limited liability company, partnership, or association through which a responsible broker engages in professional real estate activity. However, no nonlicensed individual may control or supervise the professional real estate activity of any real estate licensee associated with the firm. No nonlicensed individual may have any ownership interest in a sole proprietorship that engages in professional real estate activity. The responsible broker shall sign the application for the license. Upon the termination of a responsible broker's affiliation with the firm, the firm shall name a new responsible broker and notify the commission in writing. The application fee for a firm license shall be set out by rule, promulgated by the commission pursuant to chapter 1-26, and may not exceed one hundred dollars.

SDCL 36-21A-46.1

A responsible broker may, or a real estate salesperson or broker associate employed by or otherwise associated with a responsible broker may, form a business corporation or limited liability company under the following conditions:

(1) The business corporation or limited liability company does not engage in real estate transactions as a third-party agent or in any other capacity requiring a license under this chapter;

(2) The business corporation or limited liability company does not advertise or otherwise hold itself out as a real estate brokerage company;

(3) The responsible broker is not relieved of any obligation to supervise the employed or associated licensee or any other requirement of this chapter or the rules promulgated pursuant to this chapter;

(4) The employed or associated licensee is not relieved of any personal liability for any licensed activities by interposing the corporate or limited liability form;

(5) The business corporation or limited liability company is owned solely by a broker, a salesperson, or by that licensee and that licensee's spouse, or by that licensee and other licensees within the same firm as that licensee; and

(6) The business corporation or limited liability company is approved by and registered with the commission. The registration fee for an approved business corporation or limited liability company shall be established by rule promulgated pursuant to chapter 1-26. The fee may not exceed one hundred dollars.

SDCL 36-21A-47

The commission may promulgate rules pursuant to chapter 1-26 to provide for the issuance of a restricted broker's license to auctioneers, property managers, mortgage brokers, or time-share or residential-rental agents. The licensee may perform only those duties specified by the license. If the licensee exceeds the authority granted, the license may be terminated and criminal proceedings brought against the licensee.

SDCL 36-21A-52

Each person licensed under this chapter shall register the following place of business with the commission:

(1) For a broker associate or real estate salesperson, the licensee's responsible broker's place of business; or

(2) For a responsible broker or restricted broker, the licensee's main place of business, where the commission may send official communication.

In case of removal from the registered address, the licensee and responsible broker shall give written notice to the commission before the removal or within ten days after removal. If a licensee fails to register a new place of business, the commission must place the licensee on inactive status.

SDCL 36-21A-54

No nonresident licensee regularly engaged in the real estate business as a vocation, who maintains a definite place of business and is licensed by a state which offers the same privileges to licensees of this state, may be required to maintain a place of business within this state. The commission shall recognize the license issued by another state as qualification for a license in South Dakota. A licensee from a state that does not grant full reciprocity to licensees from South Dakota shall, in order to be licensed in South Dakota, meet the same requirements that the licensees' state requires of South Dakota licensees. The commission may adopt rules pursuant to chapter 1-26 to implement this section.

SDCL 36-21A-56

A licensee shall give written notice to the commission of a change of association and of the name of the licensed broker or firm with whom he is about to associate. The broker or firm with whom the licensee was associated and the broker and firm with whom the licensee is about to be associated shall also give written notice to the commission. The commission shall issue a statement of registration to the licensee. The commission shall place a salesman on inactive status until he is registered as being associated with another broker or firm.

SDCL 36-21A-58

A salesperson or broker associate who is not associated with a responsible broker may renew the license by submitting the renewal fee, together with the completed renewal application on which the licensee has noted inactive status. An inactive salesperson or broker associate whose license has been renewed may not engage in the real estate business until the licensee secures a new responsible broker.

SDCL 36-21A-6

For the purposes of this chapter, a broker or a real estate broker is any person who does any of the following:

(1) For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, lists, sells, exchanges, buys, rents, manages, offers or attempts to negotiate a sale, option, exchange, purchase, lease or rental of an interest in real property, or a mobile or manufactured home that has been registered under the provisions of chapters 32-3 to 32-5B, inclusive, unless licensed under chapter 32-7A to sell used mobile or manufactured homes, or advertises or holds himself out as engaged in such activities;

(2) For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, negotiates or offers or attempts to negotiate a loan, secured or to be secured by a mortgage or other encumbrance on real property;

(3) For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, lists, sells, exchanges, buys, rents, manages, offers or attempts to negotiate a sale, option, exchange, purchase, lease or rental of any business opportunity or business, or its goodwill, inventory or fixtures, or any interest therein;

(4) For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, offers, sells or attempts to negotiate the sale of property that is subject to the registration requirements concerning subdivided land;

(5) Charges a fee for undertaking to promote the sale or lease of real property by means of listing in a publication primarily for such purpose;

(6) Engages wholly or in part in the business of selling real property to the extent that a pattern of selling real property is established, unless exempted under the provisions of this chapter;

(7) Is employed by or on behalf of any owner of lots or other parcels of real property for compensation or consideration to sell the real property or any part thereof;

(8) Appraises, evaluates, offers, attempts or agrees to appraise or evaluate real property unless licensed or certified to appraise under some other provision of South Dakota law. Any person performing an appraisal or evaluation pursuant to this subdivision shall comply with the standards established by the secretary pursuant to § 36-21B-3;

(9) For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, prepares or offers to prepare a broker price opinion or a comparative market analysis;

(10) Auctions, offers, attempts or agrees to auction real estate unless licensed to auction real property under some other provision of South Dakota law; or

(11) Buys or offers to buy or sell or otherwise deals in options to buy real property.

SDCL 36-21A-62

An individual licensee shall provide to the commission proof of participation in the following required number of hours of approved continuing education in the preceding two-year period:

(1) Responsible broker, broker associate, salesperson, auctioneer, or property manager: not less than twenty-four hours; or

(2) Residential rental agent: not less than twelve hours.

Attorneys licensed in South Dakota and time-share agents are exempt from this section.

SDCL 36-21A-70

If the commission suspends, revokes, or takes any other action against a responsible broker, the action may apply to the responsible broker's firm and the firm license may be revoked, suspended, or otherwise disciplined. Each licensee shall terminate the licensee's relationship with the disciplined firm if the firm's license has been revoked or suspended.

SDCL 36-21A-71

Unprofessional conduct includes the following:

(1) Violating any provisions of this chapter or any rule promulgated by the commission;

(2) Making a material false statement in the licensee's application for a license or in any information furnished to the commission;

(3) Making any substantial and willful misrepresentation with reference to a transaction which is injurious to any party;

(4) Making any false promise or advertisement of a character such as to influence, persuade or induce a party to a transaction to the party's injury or damage;

(5) Failure to account for or to remit, within a reasonable time, any moneys coming into the licensee's possession belonging to others, commingling funds of others with the licensee's own, failing to keep the funds of others in an escrow or trust account with a federally insured financial institution, or failing to keep records relative to the deposit, which shall contain any information as may be prescribed by this chapter or the rules promulgated by the commission pursuant to chapter 1-26 relative thereto;

(6) Being convicted, or pleading guilty or nolo contendere before a court of competent jurisdiction in this or any other state, or before any federal court, of a misdemeanor involving moral turpitude or a felony arising under the laws of this state or under the laws of the United States or any other state that would be a misdemeanor involving moral turpitude or a felony under the laws of this state;

(7) Claiming or taking any secret or undisclosed amount of compensation or the failure of a licensee to reveal to the licensee's principal or employer the full amount of compensation in connection with any acts for which a license is required under this chapter;

(8) Failing or refusing upon demand to produce any document, book, or record in the licensee's possession or under the licensee's control, concerning a transaction under investigation by the commission;

(9) Offering real property for sale or lease without the knowledge and prior written consent of the owner or the owner's authorized agent or on any terms other than those authorized by the owner or the owner's authorized agent;

(10) Any violation of federal or state fair housing requirements;

(11) Failing or refusing upon demand to furnish copies including reproductions of any document pertaining to any transaction dealing with real estate to a person whose signature is affixed thereto;

(12) Paying compensation or commission in connection with a transaction to any person who is not licensed under this chapter;

(13) Failing to disclose to an owner in writing the licensee's intention or true position if the licensee directly or indirectly through a third party purchases for himself or herself or acquires or intends to acquire any interest in or any option to purchase property which has been listed with the licensee's office for sale or lease;

(14) Failure by a broker to deliver to the seller in every real estate transaction, at the time the transaction is consummated, a complete, detailed closing statement, showing all of the receipts and disbursements for the seller; also failure to deliver to the buyer a complete statement showing all money received in the transaction from the buyer and how and for what the same was disbursed, and to retain true copies of the statements in the broker's files; also failure to date and sign the closing statement;

(15) Any other conduct which constitutes dishonesty or fraudulent conduct, whether arising within or without the pursuit of the licensee's license privilege;

(16) Accepting employment or compensation for appraising real estate contingent upon reporting a predetermined value or issuing an appraisal report on real estate in which the licensee has an undisclosed interest;

(17) The revocation or suspension of any other license held by a person licensed under this chapter. Any other license includes being licensed as an attorney; real estate salesperson, broker or appraiser; insurance licensee; securities licensee; and other similar regulated occupation, trade or profession;

(18) Using, proposing the use, agreeing to the use or knowingly permitting the use of two or more contracts of sale, earnest money agreements or loan applications, one of which is not made known to the prospective lender or the loan guarantor, to enable the purchaser to obtain a larger loan than the true sales price would allow or to enable the purchaser to qualify for a loan which the purchaser otherwise could not obtain;

(19) Failing to promptly give a copy of an offer to purchase to the purchaser;

(20) Failing to promptly give the seller every written offer to purchase obtained;

(21) Upon obtaining an acceptance of the offer signed by the seller, failing to promptly give a copy of it to both purchaser and seller;

(22) Failing to make certain that all of the terms and conditions of the transaction are included in the offer to purchase;

(23) Giving a title opinion upon the merchantability of the title to property in any transaction in which the licensee participated;

(24) Preparing any legal document, giving any legal advice, or otherwise engaging in the practice of law. Preparation of the following documents is exempt from this provision:

(a) Agency agreements or extensions;

(b) Offers to purchase;

(d) Acceptances; and

(e) Closing statements;

(25) Permitting the use of a broker's license to enable licensed salespersons to establish and carry on a real estate brokerage business if the broker has only insignificant control of the affairs of the business conducted;

(26) Taking a net listing whereby a licensee agrees to take as compensation the proceeds of a sale over and above the selling price agreed in the listing contract;

(27) Failing to put in writing all guarantees of sale and other guarantees made by a licensee to the person listing the property for sale;

(28) Failing to put in writing any agreement to furnish or sell a warranty;

(29) Attempting to solicit or attempting to secure listings without first advising the owner that the licensee is a licensee and is engaged in real estate brokerage;

(30) Failing to protect and promote the interests of the client whom the licensee has undertaken to represent to the best of the licensee's ability;

(31) Failing to deal fairly with all parties to a transaction;

(32) Committing any act constituting or demonstrating bad faith, incompetency or fraudulent dealings;

(33) Using the licensee's position to gain undue influence over a prospective buyer, seller, landlord, or tenant, using the licensee's position to coerce a buyer, seller, landlord, or tenant, or using duress on a buyer, seller, landlord, or tenant;

(34) Issuing an insufficient funds check;

(35) In a business enterprise that requires licensing by the commission, associating in any manner with another person who has had a license suspended or revoked by action of the commission while the suspension or revocation is in effect. This prohibition includes a corporation, a partnership, an association, a single proprietorship, and an employer-employee relationship. A licensee may act as an agent in a real estate transaction for a person who has had a license suspended or revoked by the commission if the transaction is one that would occur in the ordinary course of the licensee's business;

(36) Buying, selling, leasing, or exchanging real property under the auspices of a partnership or corporation of which the licensee owns an interest if it is indicated that the purchase or sale is being made by a private party not licensed by the real estate commission;

(37) Making a listing contract or any other contract with the licensee's principal which allows the licensee to purchase or lease the listed property and charge a commission thereon without obtaining the written consent of the principal to such provision. This written consent shall be in addition to the signing of any listing contract;

(38) Accepting a note or other nonnegotiable instrument or anything of value not readily negotiable as earnest money on a contract or offer to purchase without the written permission of the licensee's principal;

(39) Selling, buying, exchanging or leasing real property in a manner indicating that the licensee is not licensed under this chapter; or

(40) Improperly influencing or attempting to influence the development, reporting, result, or review of a real estate appraisal by coercion, extortion, or bribery; withholding or threatened withholding of payment of an appraisal fee; conditioning the payment of an appraisal fee upon the opinion, conclusion, or valuation to be reached; requesting the appraiser report a predetermined opinion, conclusion, or valuation or the desired valuation of any person; or any other act or practice that impairs or attempts to impair an appraiser's independence, objectivity, and impartiality. This subdivision does not apply to the following acts:

(a) Requesting an appraiser to consider additional, appropriate property information;

(b) Providing further detail, substantiation, or explanation of the appraiser's value conclusion;

(d) Withholding payment of an appraisal fee based upon a bona fide dispute regarding the appraiser's compliance with the appraisal standards adopted by the Department of Labor and Regulation;

(e) Retaining a real estate appraiser from panels or lists on a rotating basis; or

(f) Supplying the appraiser with information the appraiser is required to analyze under the appraisal standards adopted by the Department of Labor and Regulation such as agreements of sale, options, or listings of the property to be valued.

SDCL 36-21A-72

A licensee who advertises shall comply with the following:

(1) Each advertisement shall clearly state the name of the firm with which an individual licensee is associated;

(2) Each advertisement of a real estate team shall clearly state the name of the brokerage company the team is affiliated with, shall clearly identify the nonlicensed individuals included in the advertisement, and may not contain language that would lead the public to believe that the team is offering real estate brokerage services independent of the real estate broker;

(3) Each advertisement in which a licensee attempts to secure real estate listings or offers to purchase, sell or lease property, or perform any other act for which a license is required under this chapter, shall clearly disclose that the advertised acts or services are being offered by a licensee; and

(4) No licensee may make any announcement in any media regarding the sale of property which gives any impression that the property sold for a price other than the actual selling price.

Notwithstanding subdivisions (1) to (4), inclusive, of this section, a licensee may advertise in the licensee's individual name an offer to sell or lease property of which the licensee is the owner. The advertisement shall disclose that the owner of the property being sold or leased is a licensee.

SDCL 36-21A-77

If for any reason the seller fails, refuses, neglects or is unable to consummate the transaction as provided in the purchase contract, and through no fault or neglect of the purchaser, the real estate transaction cannot be completed, the broker has no right to any portion of the deposit money which was deposited by the purchaser, even though the commission is earned. This deposit shall be returned to the purchaser at once.

SDCL 36-21A-80

A responsible broker shall remit immediately to the responsible broker's principal all money received by the responsible broker belonging to the principal unless, by the terms of a written employment contract, the responsible broker is authorized to retain possession of the money until the final settlement and consummation of the transaction. In that event the responsible broker shall deposit the money in a federally insured financial institution in a special trust account on the first legal banking day after the acceptance of the contract. The account shall be reconciled to the bank statements, trust ledger, and check register at least monthly. The money may not be used by the responsible broker except in connection with the transaction as authorized by the principal.

SDCL 36-21A-82

The broker shall at the time of making the deposit make a deposit slip clearly stating the name of the principal for whom it is deposited. In addition, the broker shall maintain in his office an individual ledger sheet for his principal showing the amount deposited in trust and any expenditures therefrom. The ledger sheet, deposit slip and any other record shall be made available for inspection by the commission upon request. The deposit slip and ledger sheet shall be kept as a part of the records of the broker at least four years from the closing of the transaction. A broker shall notify the commission of the name of the financial institution in which the trust account is maintained and also the name of the account on forms provided by the commission.

SDCL 36-21A-83

A responsible broker who remits immediately to the principal all money received by the responsible broker belonging to the principal without using a trust account shall maintain for at least four years the records that completely disclose all financial dealings between the principal and the responsible broker.

SDCL 36-21A-84

No responsible broker is entitled to any part of the money paid to the responsible broker in any transaction as part of the responsible broker's compensation until the transaction has been consummated or terminated. The commission may promulgate rules, pursuant to chapter 1-26, to make reasonable exceptions to this section.

SDCL 36-21A-89

The commission may promulgate rules pursuant to chapter 1-26 relating to the administration and enforcement of the provisions of this chapter in the following areas:

(1) Procedures for conducting the commission's business;

(2) Procedures and qualifications for application, minimum requirements for examination, procedures for the examination and the administration of the examination, the required score for passing the examination, and procedures for replacement of a license;

(3) Requirements for dividing a commission with a broker in another state, and requirements for application for licensure by reciprocity and the practice of a nonresident licensee in the state;

(4) Procedures for application to provide classroom instruction or correspondence work for prelicensing education, qualifications of the instructors and facilities, and procedures for approving classroom instruction and correspondence work and for withdrawing the approval;

(5) Requirements for a real estate auction, and the requirements, duties and responsibilities of an auctioneer;

(6) Requirements for mortgage brokers, including trust accounts, record-keeping, written contracts, full disclosure, and restrictions on chargeable costs and expenses;

(7) Requirements for continuing education, including procedures for granting a certificate of accreditation; notification of a material change in an approved course offering; suspension, revocation and denial of course approval; notice to students regarding the course and opportunity for comment; auditing; certificates of attendance; preregistration; and limits on correspondence courses;

(8) Requirements for property managers, including trust accounts, auditing, contracts, disclosure, disciplinary matters, financial obligations and records, and property management accounting; and

(9) Requirements for establishing and maintaining teams and the requirements, duties, and responsibilities of team leaders.

SDCL 36-21A-9

For the purposes of this chapter, an inactive license is any license that has been placed on inactive status for any of the following reasons:

(1) At the request of the licensee;

(2) Failure to designate a responsible broker;

(3) Cessation of being associated with a responsible broker or a licensed firm;

(4) Failure to notify the commission of a change of registered address;

(5) Failure of the licensee's responsible broker to maintain an active license;

(6) Failure to provide proof of errors and omissions insurance upon renewal;

(7) Failure of a nonresident real estate salesperson, who establishes residency in South Dakota, to successfully complete the education requirement for upgrade to broker associate within the prescribed timeframe; or

(8) Failure to provide proof of the necessary hours of continuing education.

No licensee whose license is on inactive status may perform any of the actions enumerated within this chapter prior to reactivation of the inactive license.

SDCL 36-21A-91

The commission may commence actions for injunction for unprofessional conduct or, as an alternate to criminal proceedings, for violation of this chapter, chapters 43-15A and 43-15B or rules promulgated pursuant thereto. The commencement of one proceeding by the commission constitutes an election. The commission may also commence actions for injunctions against any person or entity that engages in the practice of real estate pursuant to this chapter without a license issued by the commission. In any action where an injunction is granted, the court shall award the commission attorney fees and costs of the investigation and proceedings.

SDCL 36-21A-93

Before subdivided land is offered for sale the subdivider shall apply in writing for a subdivision certificate to the commission on a form furnished by the commission and approved by the attorney general. The application shall be accompanied by a filing fee of one hundred dollars plus twenty-five dollars for each one hundred lots or fraction thereof to be offered for sale. The application shall contain the following information and supporting documents:

(1) The name, address and business status of the applicant;

(2) If the applicant is a partnership, the names and addresses of the partners;

(3) If the applicant is a corporation, the place of incorporation and the names and addresses of its officers and members of its board of directors;

(4) The legal description and area of the real estate to be offered for sale, including maps and recorded plats showing the area involved;

(5) The name and address of the legal owner of the real estate to be offered for sale;

(6) A certified, audited financial statement fully disclosing the current financial condition of the developer;

(7) A statement of the condition of the title of the subdivided lands, including encumbrances as of a specified date within thirty days of the application;

(8) Copies of the instruments by which the interest in the subdivided lands was acquired and a statement of any lien or encumbrances, if any, with dates as to recording, along with the documentary evidence that any mortgagee or trustee of a deed of trust has subordinated his interest in the real estate to the interest of a purchaser of the real estate;

(9) A true statement of the terms and conditions on which it is intended to dispose of the real estate, together with copies of any contracts intended to be used. The contracts shall contain a provision entitling the purchaser, if he has not seen the land, to an unconditional right to rescind the contract and the unconditional right of refund of all payments made under the contract after inspecting the land if inspection is made within a time provided in the contract which may not be less than four months from the date of the contract and if the demand for refund or rescission of the contract is made within twenty days of the inspection. Any payment made by the purchaser shall be held in trust in a bank located in this state for four months or twenty days after inspection, whichever occurs first, and no portion of the payment may be expended for any purpose before the expiration of the trust period. The rescission period may be waived by the purchaser;

(10) A statement of the zoning and other governmental regulations affecting the use of the land to be sold or offered for sale disclosing whether or not such regulations have been satisfied;

(11) A copy of an offering statement which sets forth the material facts with respect to the land to be offered or sold.

After receiving the application, the commission may require such additional information concerning the real estate as it considers necessary.

SDCL 36-21A-95

The commission shall thoroughly investigate all matters relating to the application and may require a personal inspection of the real estate by a person or persons designated by it. All expenses incurred by the commission in investigating the real estate and its proposed sale in this state shall be borne by the applicant and the commission shall require a deposit sufficient to cover such expenses before the investigation.

SDCL 36-21C-1

Terms used in this chapter mean:

(1) "Client," any person who engages, or seeks to engage, the services of a home inspector for the purpose of obtaining inspection of and written report upon the condition of a residential building;

(2) "Commission," the South Dakota Real Estate Commission;

(3) "Home inspector," any person registered or licensed as a home inspector pursuant to the provisions of this chapter;

(4) "Home inspection," an inspection and written evaluation of all the following components of a residential building: heating system, cooling system, plumbing system, electrical system, structural components, foundation, roof, masonry structure, and exterior and interior components;

(5) "Residential building," a structure consisting of not more than four family dwelling units.

SDCL 36-21C-7

The provisions of this chapter do not apply to any of the following persons:

(1) Any person who is employed as a code enforcement official by the state or a political subdivision of the state when acting within the scope of that governmental employment;

(2) Any person regulated by the state as an architect, professional engineer, electrical contractor, or plumber, who is acting within the scope of practice of the person's profession or occupation;

(3) Any real estate broker or salesperson licensed by the state when acting within the scope of that person's license;

(4) Any real estate appraiser certified, licensed, or registered by the state when acting within the scope of that person's license;

(5) Any person engaged as an insurance adjuster, when acting within the scope of that person's profession; or

(6) Any manufactured home dealer who is licensed by the state, when acting within the scope of that person's license.

The law belongs to the people. Georgia v. Public.Resource.Org, 590 U.S. (2020)