South Dakota state law: ADU owner-occupancy requirements

The South Dakota Legislature has not enacted any state-level rule on ADU owner-occupancy. By contrast, California Government Code 65852.2(a)(6) (as amended by AB 587/AB 671) prohibits local owner-occupancy requirements for ADUs permitted between Jan 1, 2020 and Jan 1, 2025 (now extended), and other states (CO, OR, WA) have adopted similar preemption. South Dakota has NOT adopted any such preemption. Local jurisdictions may therefore: (a) require owner-occupancy in either the primary unit or ADU; (b) prohibit absentee-investor ADU ownership; (c) require a recorded restrictive covenant or deed restriction; (d) condition continued operation on annual affirmative declaration; or (e) impose no owner-occupancy requirement at all. Rapid City's 2019 ADU ordinance and Sioux Falls's Title 153 should be consulted for the operative local rule. The default in most South Dakota jurisdictions that recognize ADUs is to require the owner to occupy either the primary dwelling or the ADU as a primary residence, partly to distinguish a true ADU from a duplex conversion. Statutory enforcement of owner-occupancy is local, typically via Building Department revocation of the Certificate of Occupancy, Planning Department zoning enforcement, or civil action to enjoin the non-compliant use.

Violating a local owner-occupancy condition (e.g., owner moves out, ADU and primary unit both leased to non-owners) typically produces local zoning enforcement: notice of violation, opportunity to cure, daily civil penalties, revocation of the ADU Certificate of Occupancy, or injunction. No state-level penalty attaches. If a local covenant or deed restriction was recorded as a condition of ADU approval, breach may also produce contractual remedies for the city or HOA.