Occasionally during a tenancy an issue will arise where the tenant wants to make a repair or some type of alteration to the unit. South Dakota residential leases prohibit such handiwork by the tenant (or performed by someone hired by the tenant) without the prior written consent of the landlord. However, there are a few instances where the tenant can make a repair and deduct the cost of the repair from his rent, and they are generally related to inaction by the landlord.
Repairs must qualify before deducting
When repairs are of the type where they need to be made in order to make the premises fit for human habitation, or to put the premises in good and safe working order, and the landlord does not make the repair, the tenant has some options. The first option is for the tenant to make the repair and then deduct the costs of the repair from the rent, or recover the costs from the landlord by being reimbursed. The second option is for the tenant to vacate the premises. In that case the tenant is no longer liable for rent or performance under the lease agreement.
What happens if the cost of any necessary repairs is greater than one month’s rent? In that case, after the tenant has sent a written notice to the landlord stating the specific reason for withholding rent, the tenant can withhold the rent and immediately deposit it in a separate bank or savings and loan account. The separate account is only for purposes of holding the money before making the repairs, and a written notice to the landlord must be sent detailing the tenant’s actions. Once the landlord makes the repairs the tenant must release to landlord the deposit held in the separate account. If the tenant is making the repairs the account can accumulate enough funds to cause the repairs to be made and paid for.