South Dakota HOA ADUs & Modifications

Section 1: Overview — ADUs and modifications in South Dakota

South Dakota keeps a light hand on community-association law, and that restraint shapes almost everything that follows. The state has a condominium statute for communities that choose to adopt it, but no stand-alone planned-community statute, so most modification questions come back to the recorded covenants. South Dakota caps how long those covenants last at forty years. It handles solar through an easement statute rather than a ban on restrictions. And it treats ADUs as a matter of municipal zoning. The South Dakota Condominium Law (SDCL Chapter 43-15A) governs a condominium only when a community expressly elects in by recording a master deed.¹ Planned communities run on contract first: their recorded covenants, the South Dakota Nonprofit Corporation Act (SDCL Title 47), and the seller-disclosure provision at SDCL § 43-4-44.1 do the governing.² South Dakota has not adopted the Uniform Common Interest Ownership Act (UCIOA). One feature stands out: SDCL § 11-5-4 limits any restriction imposed by declaration or contract to no more than forty years, and that cap bears directly on whether an aging architectural restriction still holds.³ Solar answers to the declaration — South Dakota's solar provision (SDCL Chapter 43-13) lets an owner grant a written solar easement, but it does not void or limit a covenant that restricts solar, so the state sets no HOA solar mandate.⁴ Several protections cut across all of this, straight from federal law: the Freedom to Display the American Flag Act of 2005, the FCC OTARD rule for antennas and satellite dishes, the Fair Housing Act's reasonable-modification requirement, and ADA Title III for common-area facilities that serve as public accommodations.⁵ The sections that follow lay out the legal framework, the compliance duties it creates, the recent legislative and judicial activity, and how South Dakota compares nationally.

Section 2: The legal framework

2A. The condominium statute and the planned-community gap

The South Dakota Condominium Law, SDCL §§ 43-15A-1 et seq., is a condominium statute — not a general common-interest-community code. It governs a condominium project only when the developer or the owners expressly elect in, by recording a master deed or lease with the register of deeds (SDCL §§ 43-15A-3 and 43-15A-4).¹ The Real Estate Commission watches the front end of a project. Before a developer may sign a binding contract to sell a unit, the developer must hand the Commission's final or substitute public report to the buyer, give that buyer at least ten days to read it, and take a receipt (SDCL § 43-15A-19).⁶ The Commission may investigate a developer it suspects of violations and examine the developer's books (SDCL § 43-15A-26), and it may write rules to administer and enforce the chapter (SDCL § 43-15A-30).⁷ All of this governs condominium development and sales — not the day-to-day governance of a planned community.

South Dakota has no stand-alone planned-community or homeowners-association statute. A planned community answers to its recorded covenants, to the South Dakota Nonprofit Corporation Act (SDCL Title 47, Chapters 47-22 through 47-28) when the association incorporates as a nonprofit, to the targeted seller-disclosure provision at SDCL § 43-4-44.1, and to common law.² Architectural-review authority, then, is a creature of the declaration: the declaration decides whether an architectural committee or the board reviews modifications, what standards apply, and how approval works. SDCL § 11-5-1 confirms that owners may regulate and restrict, by declaration or contract, the height, size, and use of buildings and the construction, reconstruction, alteration, and repair of structures — the statutory footing for a recorded architectural covenant.⁸ South Dakota courts treat restrictive covenants as contracts and generally presume they hold, but equity governs enforcement, and a covenant can be lost to waiver or abandonment when it goes unenforced.⁹

2B. The covenant-duration limit, solar, and other categories

The duration cap is the distinctive constraint on architectural covenants. SDCL § 11-5-4 provides that the restrictions authorized by §§ 11-5-1 and 11-5-2 stay in force for whatever period a declaration or contract prescribes — but no longer than forty years from the date of that declaration or contract.³ Because §§ 11-5-1 and 11-5-2 cover restrictions on the height, size, use, alteration, and construction of buildings and improvements, the cap reaches the heart of an architectural covenant. The forty-year figure is current law; lawmakers amended the section in 2021, raising the earlier ceiling that title-standard commentary had pegged at twenty-five years.³ A restriction older than forty years may be unenforceable on duration grounds, so a board should check the recording date before it enforces an aging architectural rule. A related 2024 provision, SDCL § 11-5-11, requires a two-thirds vote of the owners to modify a declaration or contract that carries no modification provision of its own.¹⁰

Solar is easement-based. SDCL Chapter 43-13 lets any property owner grant a written solar easement to secure exposure for a solar system, for a term of up to fifty years (SDCL §§ 43-13-16.1 and 43-13-17).⁴ These provisions enable easements; they do not void an association's covenant that restricts or prohibits solar. National surveys of solar-access law bear this out — South Dakota permits solar easements but has passed no statewide access law limiting HOA authority.¹¹ So the declaration controls HOA solar, subject to the federal overlays.

On the remaining categories, South Dakota is not purely hands-off; it has some category-specific statutes. SDCL §§ 11-5-7 and 11-5-8 guarantee a homeowner — private covenants notwithstanding — the right to display a portable United States flag (along with the South Dakota state flag, a U.S. military-branch flag, or a POW/MIA flag) and a flagpole.¹² SDCL § 11-5-9 (2024) makes any homeowners-association governing-document provision that restricts the lawful possession, transportation, storage, or discharge of firearms unenforceable.¹³ No South Dakota statute addresses HOA EV-charging or landscaping restrictions, so those stay under the declaration. The practical upshot: with no broad association-restriction bar on solar, EV charging, or landscaping, the declaration binds on those categories within the forty-year duration limit — subject to the federal overlays and the narrow state carve-outs for flags and firearms.

2C. ADUs and federal overlays

South Dakota has no statewide statute that overrides association governing documents on accessory dwelling units. ADUs turn on municipal and county zoning plus the declaration — a two-layer analysis. The locality decides whether an ADU is allowed at all, by right or by conditional use, and on what dimensional terms; the declaration then decides whether the community allows it. Sioux Falls and Minnehaha County, for instance, regulate ADUs by ordinance, with § 159.305 holding a detached ADU's finished floor area to no more than 50 percent of the primary dwelling (75 percent for an attached ADU) and requiring two additional off-street parking spaces.¹⁴ The Minnehaha County/Sioux Falls joint zoning ordinance added its ADU provision by amendment MC30-53-25, adopted April 22, 2025.¹⁵ This sets South Dakota apart from California (Civil Code § 4751) and Colorado (HB 24-1152), which limit an association's power to prohibit ADUs; South Dakota has no such preemption reaching association documents.

Four federal frameworks bind every South Dakota association, whatever state law says. The Freedom to Display the American Flag Act of 2005 protects display of the U.S. flag. The FCC OTARD rule, 47 C.F.R. § 1.4000, limits restrictions on antennas and small satellite dishes within an owner's exclusive-use area. The Fair Housing Act, 42 U.S.C. § 3604(f)(3), requires an association to permit reasonable modifications for a resident with a disability, generally at that resident's expense. ADA Title III reaches common-area facilities that qualify as public accommodations.⁵ These are federal obligations — not South Dakota statutes.

Section 3: Compliance obligations created by the framework

A. Architectural review process obligations

Review authority comes from the declaration in a planned community, and from the declaration plus the Condominium Law (state statute, SDCL Chapter 43-15A) in a condominium; no state statute prescribes an architectural-review process for planned communities.¹ The forty-year duration cap (state statute, SDCL § 11-5-4) constrains enforceability for declaration-based restrictions, and a board should check it against the recording date before enforcing.³ Modifying a declaration that lacks a modification clause takes a two-thirds owner vote (state statute, SDCL § 11-5-11).¹⁰ Written decisions and recordkeeping answer to the declaration and, for an incorporated association, to the corporate-records duties in the Nonprofit Corporation Act (state statute, SDCL §§ 47-24-1 and 47-24-2), which reach both condominium and planned-community associations organized as nonprofits.²

B. Modifications the association must permit

South Dakota imposes no broad association-restriction bar on solar, EV charging, or landscaping, so the declaration governs those.¹¹ The binding cross-cutting duties are federal: display of the U.S. flag (Freedom to Display the American Flag Act of 2005), antennas and small dishes within an owner's exclusive-use area (FCC OTARD, 47 C.F.R. § 1.4000), reasonable modifications for disability at the resident's expense (FHA, 42 U.S.C. § 3604(f)(3)), and ADA Title III for qualifying common-area facilities.⁵ Two narrow state-statute carve-outs also bind associations: flag and flagpole display (SDCL §§ 11-5-7, 11-5-8) and firearms (SDCL § 11-5-9).^12,13 These state and federal provisions apply to both condominiums and planned communities.

C. ADU obligations and limits on HOA authority

No South Dakota statute obligates an association to permit an ADU against the declaration. Municipal and county zoning (local ordinance) binds the locality and sets whether and how an ADU may be built; the declaration governs whether the community allows it.¹⁴ A condominium provision changes none of this — the ADU question is a zoning-plus-declaration matter for condominiums and planned communities alike.

D. Enforcement, dispute resolution, and appeal obligations

Any required hearing or notice procedure arises from the declaration or, for a condominium developer matter, the Condominium Law (state statute, SDCL Chapter 43-15A).⁶ Covenant-enforcement disputes go to the South Dakota Circuit Courts, and appeals run straight to the South Dakota Supreme Court; there is no intermediate appellate court.¹⁶ The Real Estate Commission oversees condominium developer filings and administers a general property-manager license (a restricted broker's license under SDCL § 36-21A-47); it does not regulate HOAs, and South Dakota does not license community-association managers.¹⁷

Section 4: Recent legislative and judicial activity

A. Recent bills

South Dakota made two changes to SDCL Chapter 11-5 in the 2024 session that reach declaration-based communities, and both took effect the same day. A third, older change — the forty-year duration cap — dates to 2021.

B. Recent appellate rulings

South Dakota's courts do the enforcing here, and one recent Supreme Court decision reset the terms on which an old covenant survives.

An earlier decision, Spring Canyon Properties, LLC v. Cal SD, LLC, 2024 S.D. 68 (November 20, 2024), took up a restrictive covenant that regulated property maintenance and improvements, including a ban on new construction in designated "no build" areas.¹⁸

C. Active legislative debates

No pending South Dakota bill specific to HOA architectural review, ADUs, or solar surfaced in the 2026 regular session as of this writing; ADU policy activity continues mainly at the municipal and county level, such as the 2025 Minnehaha County/Sioux Falls joint ordinance amendment.¹⁵

Section 5: National positioning and related coverage

South Dakota sits among the thin-statute, covenant-first states, marked by a forty-year covenant-duration cap (SDCL § 11-5-4), a condominium developer-filing regime that the Real Estate Commission oversees (SDCL Chapter 43-15A), an easement-based solar law (SDCL Chapter 43-13), and the absence of an intermediate appellate court — so covenant disputes move from the Circuit Courts straight to the South Dakota Supreme Court. On ADUs, unlike the HOA-preemption states California (Civil Code § 4751) and Colorado (HB 24-1152), South Dakota treats the question as a municipal-zoning matter layered over the declaration, with no statewide preemption reaching association documents. For a multi-state operator, the takeaway is direct: in South Dakota the declaration is the operative authority on most modifications, subject to the forty-year duration cap and the narrow state carve-outs for flags and firearms, and ADUs stay a zoning-and-declaration question rather than a statutory-right question.

HOA Weekly's South Dakota ADUs and Modifications coverage updates quarterly as the Legislature and the South Dakota Supreme Court act. The federal frameworks — the Freedom to Display the American Flag Act, OTARD, the Fair Housing Act, and the ADA — apply to South Dakota associations regardless of the state framework, and a fuller treatment of those federal rules will follow.

1. SDCL Chapter 43-15A, Condominiums, §§ 43-15A-3 and 43-15A-4 (establishment of condominium project by recorded master deed or lease) ↩ ↩ ↩
2. SDCL § 43-4-44.1, Additional disclosure — Residential real property under a homeowners' association; and SDCL Title 47, Nonprofit Corporation Act (Chapters 47-22 through 47-28, records at §§ 47-24-1, 47-24-2) ↩ ↩ ↩
3. SDCL § 11-5-4, Duration of restrictions by declaration or contract (not exceeding forty years; SL 2021, ch 56, § 1) ↩ ↩ ↩ ↩ ↩
4. SDCL Chapter 43-13, §§ 43-13-16.1 (solar easement defined) and 43-13-17 (granting of wind or solar easements — maximum term) ↩ ↩
5. FCC Over-the-Air Reception Devices (OTARD) Rule, 47 C.F.R. § 1.4000; Freedom to Display the American Flag Act of 2005 (Pub. L. 109-243); Fair Housing Act, 42 U.S.C. § 3604(f)(3); ADA Title III ↩ ↩ ↩
6. SDCL § 43-15A-19, Copy of reports issued to prospective purchaser before binding contract for sale — Time to read copy (no less than ten days) — Receipt ↩ ↩
7. SDCL § 43-15A-26 (investigation of developer suspected of violations — examination of books) and § 43-15A-30 (promulgation of rules to administer and enforce chapter), per South Dakota HOA statutory summary ↩
8. SDCL § 11-5-1, Buildings, space requirements, and uses subject to regulation and restriction by declaration or contract of landowners ↩
9. Hood v. Straatmeyer, 2025 S.D. 12 (S.D. Mar. 5, 2025), No. 30180 (South Dakota Supreme Court opinion) ↩ ↩
10. SDCL § 11-5-11, Modification of a restrictive covenant — Two-thirds vote (SL 2024, ch 44, § 1) ↩ ↩ ↩
11. Solar-access-law survey confirming South Dakota permits solar easements but has no statewide solar-access law restricting HOA authority (see SDCL Chapter 43-13) ↩ ↩
12. SDCL § 11-5-7, Flag — Display (and § 11-5-8, Flagpole — Display) (SL 2021, ch 57, § 1) ↩ ↩
13. SDCL § 11-5-9, Firearms regulation — Homeowner association restriction unenforceable (SL 2024, ch 42, § 1) ↩ ↩ ↩
14. Sioux Falls / Minnehaha County Code § 159.305, Accessory Dwelling Units (detached ADU floor area not to exceed 50%, attached not to exceed 75%, of primary dwelling; two additional off-street parking spaces) ↩ ↩
15. Revised Joint Zoning Ordinance for Minnehaha County and the City of Sioux Falls, ADU provision added by amendment MC30-53-25 (adopted April 22, 2025) ↩ ↩
16. South Dakota Unified Judicial System, court structure: two levels — Circuit Courts and Supreme Court; appeals go directly to the Supreme Court (no intermediate appellate court) ↩
17. South Dakota Real Estate Commission (administers the Condominium Act and a property-manager license, a restricted broker's license under SDCL § 36-21A-47; no community-association-manager license) ↩
18. Spring Canyon Properties, LLC v. Cal SD, LLC, 2024 S.D. 68, No. 30511 (S.D. Nov. 20, 2024) ↩