South Dakota HOA Fines: No Statutory Cap, No Hearing Requirement, Enforcement Only in Circuit Court

The starting point is that SDCL ch. 11-5, the chapter that authorizes recorded declarations, contains no fine provision at all. SDCL 11-5-1 lets an owner of real property in a first or second class municipality regulate by declaration the height, number of stories and size of buildings, the percentage of a lot that may be occupied, the size of yards, courts and open spaces, the density of population, and the location and use of buildings and land. SDCL 11-5-2 requires the declaration to be signed, acknowledged, and recorded with the register of deeds within thirty days, with a certified copy filed with the municipal auditor if the governing body requires it, and it requires both the owner and the owner's spouse to sign where the property is a homestead. Nowhere in that scheme does the legislature authorize a monetary penalty, set a maximum, or describe how one is imposed. The dollar figure on a South Dakota violation notice therefore comes from the declaration or the rules adopted under it, and if the declaration is silent, the association has no fine power to exercise.

SDCL 11-5-9, added by SL 2024, ch 42, is the only place in South Dakota law that describes what an association is. It defines a homeowners' association as any incorporated or unincorporated association in which membership is based upon owning or possessing an interest in real property and that has the authority, pursuant to recorded covenants, bylaws, or other governing documents, to assess and record liens against the real property of its members. That definition confirms the shape of the law here: lien authority is a document-granted power, not a statutory one. South Dakota has no assessment lien statute, no priority rule putting association charges ahead of a mortgage, and no association foreclosure procedure. If a declaration does grant lien rights, the association records its lien with the register of deeds and forecloses it like any other lien, in circuit court.

Because SDCL 11-5-3 is the enforcement section, it is also the practical ceiling on what an association can do without a judge. Fines and unpaid assessments are collected by an action at law or a suit in equity, brought by any person possessing an interest in the land affected or by the first or second class municipality in which the land sits. Under SDCL 9-2-1 that means a city of five thousand or more, or one between five hundred and four thousand nine hundred ninety-nine. Nothing in the chapter allows an association to shut off utilities, tow from a member's own driveway, suspend voting rights, or bar access to a member's lot as a collection device, and any such remedy would have to be found in the declaration and then enforced through the same court action.

Two substantive limits override the covenants. A fine imposed for displaying an official United States flag no larger than four and one-half feet by six feet, or for a freestanding flagpole no more than twenty feet high, is unenforceable under SDCL 11-5-7 and 11-5-8. A provision that prohibits or restricts the lawful possession, transportation, or storing of a firearm, any part of a firearm, or firearm ammunition, or the lawful discharge of a firearm, may not be included or enforced under SDCL 11-5-9, so a fine written on that provision fails with it.

Timing matters in South Dakota in a way it does not in most states. SDCL 11-5-4 provides that restrictions authorized by SDCL 11-5-1 and 11-5-2 continue in force for the period prescribed in the declaration but not exceeding forty years from the date of the declaration, so a violation notice issued under a declaration recorded more than forty years ago rests on a restriction the statute no longer keeps alive. On the collection side, South Dakota prescribes no special limitation period for association charges, which leaves the general six-year limit in SDCL 15-2-13(1) for an action upon a contract, obligation, or liability, express or implied. And under SDCL 11-5-11, if the declaration contains no modification clause, changing the fine schedule or any other restriction takes a vote of two-thirds of the owners governed by it.

A South Dakota association cannot make a fine stick by itself. SDCL 11-5-3 routes enforcement of a recorded declaration into circuit court through an action at law or a suit in equity, which means an unpaid fine becomes a lawsuit, a recorded lien if the declaration grants lien authority, or nothing. The statute imposes no penalty on an association that fines improperly, awards no attorney fees to either side, and creates no administrative appeal, because no state agency regulates South Dakota associations. The Real Estate Commission's authority under SDCL ch.

43-15A is limited to condominium developers, public reports, and sales practices, and SDCL 43-15A-25 makes a Class 1 misdemeanor of a developer's false statements, not an association's enforcement decisions. A member contesting a fine therefore defends on the documents: whether the declaration authorizes a fine at all, whether the notice and hearing steps the declaration itself sets out were followed, whether the restriction is still within the forty-year window of SDCL 11-5-4, and whether the fine collides with the flag or firearm protections in SDCL 11-5-7, 11-5-8, and 11-5-9.