South Dakota Power of Attorney for Real Estate Transactions

Selling a family farm, closing on a home purchase while out of state, or managing rental property for an aging parent — all of these require a power of attorney that meets South Dakota's specific real estate recording standards. A POA that works perfectly at a bank can still be rejected at the county register of deeds if it doesn't meet the formatting requirements for recorded documents.

What the POA Must Include for Real Estate

Under SDCL 59-12-26, real property authority allows the agent to buy, sell, lease, mortgage, and manage real estate on the principal's behalf. But this authority must be explicitly granted — a general power of attorney that doesn't specifically address real property may not be accepted by title companies or the register of deeds.

The document should explicitly grant authority to:

• Execute deeds (warranty, quitclaim, or special warranty)
• Sign mortgage documents and promissory notes
• Enter into purchase agreements
• Manage and lease real property
• Pay property taxes and assessments
• Execute mineral rights or easement agreements

For South Dakota agricultural land, also consider granting authority to enter into USDA program contracts, manage Conservation Reserve Program (CRP) enrollments, and handle Farm Service Agency (FSA) filings under SDCL 59-12-36.

Recording Requirements

A power of attorney does not need to be recorded to be valid between the parties. However, for any real estate transaction, recording with the county register of deeds is practically mandatory.

Under SDCL 43-28-23, documents presented for recording must meet specific formatting standards:

• Printed on white paper, minimum 8.5 x 11 inches
• Black ink for all text and signatures
• Margins that allow for the register's recording stamp
• The principal's name and the agent's name clearly stated
• A legal description of the property or a statement that the POA applies to all real property in the county

The recording fee is $30 for documents up to 50 pages, plus $2 per page beyond that.

Title Company and Closing Agent Requirements

Title companies in South Dakota add their own layer of scrutiny beyond the statutory requirements. When an agent appears at closing in place of the principal, expect the title company to:

1. Require the original POA (or a certified copy) — not a photocopy
2. Verify the POA is current and not revoked — they may request the Agent's Certification form under SDCL 59-12-42
3. Confirm the POA specifically authorizes real estate transactions — a general financial POA without explicit real property language may be rejected
4. Check that the POA is notarized — consistent with SDCL 59-12-4
5. Require the POA to be recorded before closing proceeds

Some title insurance underwriters require that the POA be recorded in the same county as the property before they will issue a title insurance policy. Recording should be done well before the closing date to avoid last-minute delays.

Special Considerations for Agricultural Land

South Dakota's agricultural economy means many real estate POAs involve farmland transactions. Issues specific to ag land:

Mineral rights. South Dakota separates surface and mineral rights. Unless the POA explicitly grants authority over mineral interests, the agent may not be able to execute oil, gas, or mineral leases — even if they have general real property authority.

CRP and FSA contracts. Federal agricultural program contracts have their own signature requirements. The USDA Farm Service Agency may require a specific POA form (FSA-211) in addition to the state statutory POA.

1031 exchanges. If the transaction involves a tax-deferred exchange, the POA must specifically authorize the agent to enter into exchange agreements and sign related documents. A general real estate grant may not be sufficient for the qualified intermediary.

When a Limited POA Is More Appropriate

For a single real estate transaction — selling one property while the owner is traveling, for example — a limited power of attorney may be preferable to a general one. A limited POA identifies the specific property, the specific transaction, and a defined time period. Title companies and closing agents are often more comfortable with limited POAs because the scope is clear and the risk of unauthorized transactions is lower.

The South Dakota Power of Attorney Kit includes both general and limited real estate POA provisions with the formatting standards required by South Dakota county registers of deeds.

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