LANDLORD AND TENANT ORDINANCE

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TITLE 10

LANDLORD AND TENANT ORDINANCE

TABLE OF CONTENTS

PREAMBLE AND FINDINGS ...................................................................................................... 3

PART I - GENERAL PROVISIONS, SCOPE, AND JURISDICTION ........................................ 3

I 0-1-1

Title .......................................................................................................................... 3

10-1-2

Specific Repealer ..................................................................................................... 4

10-1-3

Purpose; Rules of Construction ............................................................................... 4

10-1-4

Construction Against Implicit Repeal...................................................................... 4

I 0-1-5

Administration of Remedies; Enforcement ............................................................. 4

I0-1-6

Jurisdictional Application ........................................................................................ 4

I0-1-7

Conflicts of Law ...................................................................................................... 5

I0-1-8

Exclusion from Application of Title ........................................................................ 5

I 0-1-9

Tribal Com1 Jurisdiction and Service of Process..................................................... 6

PART II - GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION................. 6

10-2-1

Definitions ............................................................................................................... 6

10-2-2

Obligation of Good Faith ......................................................................................... 7

10-2-3

Unconscionability .................................................................................................... 8

I 0-2-4

Notice....................................................................................................................... 8

PART III - RENTAL AGREEMENTS .......................................................................................... 9

10-3-1

Te1ms and Conditions of Rental Agreement ........................................................... 9

10-3-2

Effect of Unsigned or Undelivered Rental Agreement............................................ 9

10-3-3

Prohibited Provisions in Rental Agreements ........................................................... 9

PART IV - LANDLORD OBLIGATIONS .................................................................................. 10

10-4-1

Security Depositions; Prepaid Rent ....................................................................... I 0

10-4-2

Disclosure .............................................................................................................. 10

10-4-3

Landlord to Deliver Possession of Dwelling Unit................................................. 11

10-4-4

Landlord to Maintain Premises.............................................................................. 11

10-4-5

Limitation of Liability ........................................................................................... 12

PART V - TENANT OBLIGATIONS ......................................................................................... 12

10-5-1

Tenant to Maintain Dwelling Unit.. ....................................................................... 12

10-5-2

Rules and Regulations ........................................................................................... 13

10-5-3

Access .................................................................................................................... 14

10-5-4

Tenant to Use and Occupy ..................................................................................... 14

PART VI - TENANT REMEDIES ............................................................................................... 14

10-6-1

Noncompliance by the Landlord-In General....................................................... 14

I 0-6-2

Failure to Deliver Possession ................................................................................. 15

10-6-3

Self-Help for Minor Defects .................................................................................. 15

10-6-4

Wrongful Failure to Supply Heat, Water, Hot Water, or Essential Services ......... 16

I 0-6-5

Fire or Casualty Damage ....................................................................................... 16

I 0-6-6

Tenant's Remedies for Landlord's Unlawful Ouster, Exclusion, or Diminution of

Service..................................................................................................................... 17

PART Vll - LANDLORD REMEDIES ....................................................................................... 17

I 0-7-1

Noncompliance with Rental Agreement; Failure to Pay Rent ................................ 17

I 0-7-2

Failure to Maintain ................................................................................................. 17

I 0-7-3

Remedies for Absence, Nonuse and Abandonment............................................... 18

I 0-7-4

Waiver of Landlord's Right to Terminate ............................................................. 18

I 0-7-5

Landlord Liens; Distress for Rent.. ........................................................................ 18

I 0-7-6

Remedy after Termination ..................................................................................... 18

I 0-7-7

Recovery of Possession Limited ............................................................................ 18

PART VIII - PERIODIC TENANCY; HOLDOVER; ABUSE OF ACCESS ............................. 19

I 0-8-1

Periodic Tenancy; Holdover Remedies ................................................................. 19

I 0-8-2

Landlord and Tenant Remedies for Abuse of Access............................................ 19

PART IX-RETALIATORY CONDUCT ................................................................................... 19

I 0-9-1

Retaliatory Conduct Prohibited ............................................................................. 19

PART X - EFFECTIVE DATE; SA VINGS CLAUSE; SEVERABILITY .................................. 20

I 0-10-1

Effective Date ......................................................................................................... 20

10-10-2

Savings Clause ........................................................................................................ 20

10-10-3

Severability ............................................................................................................. 20

PART Xl-TATEWIN APARTMENT COMPLEX .................................................................... 21

I 0-11-1

Premises Described ................................................................................................. 21

10-11-2

Management of the Tatewin Apmtment Complex ................................................. 21

I 0-11-3

Eligibility for Residence at the Tatewin Apartments .............................................. 21

PREAMBLE AND FINDINGS

I. Tribal custom and traditions for real property in the pre-European invasion era provided

for the communal sharing of land, with more emphasis placed on the well-being of the

group that an individual. CmTently however, the nexus of prope1iy use by the Tribe, and

Tribal members follows more closely to the modem trends of American Law. This

notion makes it imperative for the Tribe to establish well-tailored laws to maintain the

prope1iy rights of the Tribe, and tribal members.

2. There are various housing entities on the Flandreau Reservation, and on other lands under

the Flandreau Santee Sioux Tribe's jurisdiction that must be regulated to ensure that these

structures are reliable, safe, sanitary, and maintained. The relationship between landlord

and tenant is a key component of modem housing, and this ordinance intends to provide a

legal foundation to cultivate long-lasting, positive relationships between these parties.

3. Previously, the condition of housing made available for Indians was poor, with

unsanitary, unsafe, and overcrowded dwelling accommodations. The Flandreau Santee

Sioux Tribe has remedied this by first adopting an eviction code in 1987, and complying

with federal and local procedures to provide quality, low cost housing.

4. Adequate housing promotes Tribal Members to live in and around the Flandreau

Reservation. Keeping members close strengthens the Tribal community, and allows

young members to grow in this culturally and traditionally rich heritage.

5. The Tribe must also promulgate this ordinance to protect the Tribe's assets. Great

amounts of Tribal money have been expended on the construction and maintenance of

Tribally-owned housing complexes, and weak foundation of law could lead these state

of-the-art complexes to become run-down slums. These buildings must survive countless

numbers of tenants so as to achieve the long-term goal of benefit both current, and future

members of the Tribe

6. Avenues for the timely procedures of renting, payment of rents, and eviction are critical

components of an effective Landlord/Tenant ordinance. Although it is well established

that the lease agreement is the primary controlling document of the Landlord and Tenant

ordinance, this ordinance provides the proper method for using the Flandreau Santee

Sioux Tribe Tribal Court's judicial process when resolving claims.

PART I

GENERAL PROVISIONS, SCOPE, AND JURISDICTION

10-1-1

Title

This ordinance shall me known and cited as the Landlord and Tenant Ordinance of the Flandreau

Santee Sioux Tribe.

10-1-2

Specific Repealer

This Ordinance replaces the previous Title IO of the FSST Tribal Law and Order Code, entitled

"Eviction Code of the Flandreau Santee Sioux Tribe of the Flandreau Reservation, South

Dakota" is entirety. Any agreements founded on the previous Title 10 will become governed by

this Title upon the passage of this ordinance. Title I 0A of the FSST Tribal Law and Order Code

entitled "HOUSING AUTHORITY" will not be revoked, changed, or altered by the passage of

this Title.

10-1-3

Purpose; Rules of Construction

(a) This Title shall be liberally construed and applied to promote its underlying pmposes and

policies.

(b) Underlying purposes and policies of this Title are:

(I) to simplify, clarify, modernize, and revise the law governing the rental of

dwelling units and the rights and obligations of landlords and tenants;

(2) to encourage landlords and tenants to maintain and improve the quality of

housing;

(3) to provide a consistent basis of law that the Tribe can utilize when leasing

property to member and non-member tenants; and

(4) to make laws regarding leases on tribal land consistent with modern practices in

real estate while keeping in mind the customs and traditions of the Tribe.

10-1-4

Construction Against Implicit Repeal

This Title is intended as a unified coverage of its subject matter, no pm1 of it is to be construed as

impliedly repealed by subsequent Executive Committee action if that construction can be

reasonable avoided.

10-1-5

Administration of Remedies; Enforcement

(a) The remedies provided by this Ordinance shall be so administered that an aggrieved party

may recover appropriate damages. The aggrieved pm1y has a duty to mitigate damages.

(b) Any right or obligation declared by this Ordinance is enforceable by action unless the

provision declaring it specified a different and limited effect.

10-1-6

Jurisdictional Application

This Ordinance applies to, regulates, and determines rights, obligations, and remedies under a

rental agreement, wherever made, for a dwelling unit located within the jurisdiction of the

Flandreau Santee Sioux Tribe. An individual need not be a member of the Tribe or Native

American to subject to this ordinance. All disputes that arise from a rental agreement requiring

adjudication must be settled in the Flandreau Santee Sioux Tribe Tribal Court.

10-1-7

Conflicts of Law

(a) United States Government. If any provisions of the United States Constitution, statutes,

regulations, or other law clearly are in conflict with this Title, the United States law will

govern.

(b) State of South Dakota. To the extent that any laws of the State of South Dakota have

been made applicable to the Flandreau Reservation, if there is a conflict between such

laws and this Title, this Title shall govern and shall pre-empt the application of State

laws. These State laws may be read as advisory, but must not contradict this Title.

law, case, or policy, this Title will control. If this Title conflicts with tribal laws or

ordinances which have been enacted to comply with the Depmtment of Housing and

Urban Development or other agencies of the United States, such tribal laws will govern

over this Title.

(d) Supplementary Principles of Law Applicable. Unless displaced by the provisions of this

Title, the other tribal principles oflaw or equity, including the law relating to capacity to

contract, mutuality ofobligations, principal and agent, real prope1ty, public health, safety

and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, or other

validating or invalidating cause supplement its provisions.

10-1-8

Exclusion from Application of Title

Unless created to avoid the application of this Title, the following are not governed by this Title:

(a) residence at an institution, public or private, if incidental to detention or the provision of

medical, geriatric, educational, counseling, religious, or similar service;

(b) occupancy under a contract of sale ofa dwelling unit or the prope1iy of which it is a part,

if the occupant is the purchaser or a person who succeeds to his interest;

(d) occupancy by an employee of a landlord whose right to occupancy is conditional upon

employment in and about the premises;

(e) occupancy by an owner ofa condominium unit; or

(f) occupancy under a rental agreement covering premises used by the occupant primarily

for agricultural purposes.

10-1-9

Tribal Court Jurisdiction and Sen'ice of Process

(a) The Flandreau Santee Sioux Tribe Tribal Comt may exercise jurisdiction over any

landlord with respect to any conduct on Flandreau Santee Sioux Tribe lands by this Title,

or with respect to any claim arising from a transaction subject to this Title. In addition to

any other method provided by mle or by statute, personal jurisdiction over a landlord

may be acquired in a civil action or proceeding instituted in the comt by service of

process in the manner provided by this section.

(b) Service of process may be made for a matter m·ising out of this Title in accordance with

the Tribal Law and Order Code A1ticle 4, Chapter 2, et seq.

procedures for a civil claim will be followed, with the exception that all judgments must

rendered within five (5) business days of the closing of the hearing.

PART II

GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION

10-2-1

Definitions

Subject to additional definitions contained in subsequent sections of this Title which apply to

specific sections or parts thereof, and unless the context otherwise requires, in this Title,

(a) "action" includes recoupment, counterclaim, set-off, suit in equity, and any other

proceeding in which the rights are detennined, including an action for possession;

(b) "building or housing codes" includes any law, ordinance, or govenm1ental regulation

concerning fitness for habitation, or the construction, maintenance, operation, occupancy,

use, or appearance of any premises, or dwelling unit;

or sleeping place by one person who maintains a household or by two or more persons

who maintain a connnon household;

(d) "good faith" means honesty in fact in the conduct of the transaction concerned;

(e) "Indian" means a person who is recognized as being an Indian or Alaska Native by any

Tribe, or the United States government and includes those who qualify through blood

quantum or ancestry;

(f) "Indian Housing Authority," or "Housing Authority" means the entity established under

the laws ofthe Tribe, the laws of the State of South Dakota, or othe1wise for the pmpose

ofconstmcting and maintaining dwellings for public use within the te11'itorial jurisdiction

ofthe Tribe;

(g) "landlord" means the owner, lessor, or sublessor of the dwelling unit or the building of

which it is a pmi;

(h) "organization" includes a corporation, government, govermnental subdivision or agency,

business trust, estate, trust, pminership or association, two or more persons having a joint

or common interest, and any other legal or commercial entity;

(i) "owner" means one or more persons, jointly or severally, in whom is vested (1) all or pmi

of the legal title to property or (2) all or part of the beneficial ownership and a right to

present use and enjoyment of the premises. The term includes a mortgagee in possession;

U) "person" includes an individual or organization;

(k) "premises" means a dwelling unit and the structure of which it is a part and facilities and

appwienances therein and grounds, areas, and facilities held out for the use of tenants

generally or whose use is promised to the tenant;

(l) "rent" means all payments to be made to or for the benefit of the landlord under the rental

agreement;

(m)"rental agreement" means all agreements, written or oral, and valid rules and regulations

adopted under FSST § 10-5-2 embodying the tenns and conditions conce1iing the use and

occupancy of a dwelling unit and premises;

(n) "reservation" means the Flandreau Reservation of the Flandreau Santee Sioux Tribe;

(o) "single family residence" means a structure maintained and used as a single dwelling

unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling

unit, it is a single family residence if it has direct access to a street or thoroughfare and

shares neither heating facilities, hot water equipment, nor any other essential facility or

service with any other dwelling unit;

(p) "tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the

exclusion of others;

(q) "Tribal Lands" means all lands owned by, held in trust for, leased, occupied or othe1wise

controlled by the Flm1dreau Santee Sioux Tribe, and any and all areas which may

constitute the Indian Country of the Tribe under applicable provisions of Tribal law and

the law of the United States of America;

(r) "Tribe" means the Flandreau Santee Sioux Tribe.

10-2-2

Obligation of Good Faith

Every duty under this Title and every act which must be perfonned as a condition precedent to

the exercise of a right or remedy under this Title imposes an obligation of good faith in its

perfo1mance or enforcement.

10-2-3

Unconscionability

(a) Ifthe court, as a matter oflaw,

(1) find a rental agreement or any provision thereofwas unconscionable when made,

the court may refuse to enforce the agreement, enforce the remainder ofthe

agreement without the unconscionable provision, or limit the application ofany

unconscionable provision to avoid an unconscionable result; or

(2) a settlement in which a pa1ty waives or agrees to forego a claim or right under this

Title or under a rental agreement was unconscionable when made, the court may

refuse to enforce the settlement, enforce the remainder ofthe settlement without

the unconscionable provision, or limit the application of any unconscionable

provision to avoid an unconscionable result.

(b) If unconscionability is put into issue by a party or by the court upon its own motion the

paities shall be afforded a reasonable oppo1tunity to present evidence as to the setting,

purpose, and effect of the rental agreement or settlement to aid the court in making the

detennination.

10-2-4

Notice

(a) A person has notice ofa fact if

(1) He has actual knowledge ofit;

(2) He has received written notice ofit; or

(3) From all the facts and circumstances known to him at the time in question, he has

reason to know that it exists.

A person "knows" or "has knowledge" of a fact ifhe has actual knowledge ofit.

(b) A person "notifies" or "gives" a notice or notification to another person by taking steps

reasonably calculated to infonn the other in ordinary course whether or not the other

actually comes to know of it. A person "receives" a notice or notification when

(1) it comes to his attention; or

(2) in the case ofthe landlord, it is delivered at the place ofbusiness of the landlord

through which the rental agreement was made or at any place held out by him as

the place for receipt ofthe communication; or

(3) in the case ofthe tenant, it is delivered in hand to the tenant or mailed by

registered or certified mail to him at the place held out by him as the place for

receipt of the communication, or in the absence of such designation, to his last

knovm place ofresidence.

for a paiticular transaction from the time it is brought to the attention ofthe individual

conducting that transaction, and in any event from the time it would have been brought to

his attention ifthe organization had exercised reasonable diligence.

PART III

RENTAL AGREEMENTS

10-3-1

Terms and Conditions of Rental Agreement

(a) A landlord and tenant may include in a rental agreement terms and conditions not

prohibited by this Title or other rule oflaw, including rent, term ofthe agreement, and

other provisions governing the rights and obligations ofthe paities. A rental agreement

will provide for the relationship between landlord and tenant, and will be granted the

remedies contained within it by the Tribal Comt.

(b) In absence of agreement, the tenant shall pay as rent the fair rental value for the use and

occupancy ofthe dwelling.

parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is

payable at the beginning ofany term one moth or less and otherwise in equal monthly

installments at the beginning ofeach month. Unless otherwise agreed, rent is unif01mly

apportionable from day-to-day.

10-3-2

Effect of Unsigned or Undelivered Rental Agreement

(a) Ifthe landlord does not sign and deliver a written rental agreement signed and delivered

to him by the tenant, acceptance ofrent without reservation by the landlord gives the

rental agreement the same effect as ifit had been signed and delivered by the landlord.

(b) Ifthe tenant does not sign and deliver a written rental agreement signed and delivered to

him by the landlord, acceptance ofpossession and payment ofrent without reservation

gives the rental agreement the same effect as ifit had been signed and delivered by the

tenant.

longer than one year, it is effective for only one year.

(d) No oral terms or conditions may supplement a lease in this section.

10-3-3

Prohibited Provisions in Rental Agreements

(a) A rental agreement may not provide that the tenant:

(1) agrees to waive or forego rights and remedies under this Title;

(2) authorizes any person to confess judgment on a claim arising out ofthe rental

agreement;

(3) agrees to pay the landlord's attorney's fees; or

(4) agrees to exculpation or limitation ofany liability ofthe landlord arising under

law or to indemnify the landlord for the liability or the costs com1ected therewith.

(b) A provision prohibited in subsection (a) included in the rental agreement is unenforceable

only as to that provision.

PARTIV

LANDLORD OBLIGATIONS

10-4-1

Security Depositions; Prepaid Rent

(a) A landlord may not demand or receive security, however denominated, in an amount or

value in excess ofone (I) month's periodic rent. In the case ofan apartment complex

that is not based on the fair market value for rent, but is subsidized by either a United

States or Tribal Governmental program, the security deposit may not exceed five hundred

dollars ($500.00).

(b) Upon termination ofthe tenancy, prope11y or money held by the landlord as security may

be applied to the payment ofaccrued rent and the amount ofdamages which the landlord

has suffered by reason of the tenant's noncompliance with FSST § I 0-5-1 all as itemized

by the landlord in a written notice delivered to the tenant together with the amount due

thi1ty (30) days after te1mination ofthe tenancy and delivery ofpossession and demand

by the tenant.

required to be paid to the tenants under this Title, the tenant may recover the property and

money due him together with damages in an amount equal to the amount wrongfully

withheld.

(d) This section does not preclude the landlord or tenant from recovering other damages to

which he may be entitled under this Title.

(e) The holder ofthe landlord's interest in the premises at the time ofthe tennination of the

tenancy is bound by this section.

10-4-2

Disclosure

(a) A landlord or any person authorized to enter into a rental agreement on his behalf shall

disclose to the tenant in writing at or before commencement ofthe tenancy the name and

address of:

(I) the person authorized to manage the premises; and

(2) an ovvner of the premises or a person authorized to act for and on behalf of the

owner for the purpose of service of process and receiving and receipting for

notices and demands.

(b) The info1mation required to be furnished in this section shall be kept cunent and this

section extends to and is enforceable against any successor landlord, owner, or manager.

is landlord for:

(I) service of process and receiving and receipting for notices and demands; and

(2) performing the obligations of the landlord under this Title and under the rental

agreement and expending or making available for the purpose all rent collected

from the premises.

10-4-3

Landlord to Deliver Possession of Dwelling Unit

At the commencement of the te1111 a landlord shall deliver possession of the premises to the

tenant in compliance with the rental agreement and FSST § 10-4-4. The landlord may bring an

action for possession against any person wrongfully in possession and may recover the damages

provided in FSST § 10-8-1.

Landlord to Maintain Premises

10-4-4

(a) A landlord shall

(]) comply with the requirements of applicable building and housing codes materially

affecting health and safety;

(2)

make all repairs and do whatever is necessary to put and keep the premises in a fit

and habitable condition;

(3) keep all common areas of the premises in a clean and safe condition;

(4) maintain in good and safe working order and condition all electrical, plumbing,

sanitary, heating, ventilating, air-conditioning, and other facilities and appliances,

including elevators, supplied or required to be supplied by him;

(5) provide and maintain appropriate receptacles and conveniences for the removal of

ashes, garbage, rnbbish, and other waste incidental to the occupancy of the

dwelling unit and airnnge for their removal; and

(6) supply rnnning water and reasonable amounts of hot water at all times and

reasonable heat during months requiring it, except where the building that

includes the dwelling unit is not required by law to be equipped for that purpose,

or the dwelling unit is so constructed that heat or hot water is generated by an

installation within the exclusive control of the tenant and supplied by a direct

public utility connection.

(b) If the duty imposed by paragraph (1) of subsection (a) is greater than any duty imposed

by any other paragraph of that subsection, the landlord's duty shall be dete1mined by

reference to paragraph ( l ) of subsection (a).

perform the landlord's duties specified in paragraphs (5) and (6) of subsection (a) and

also specified repairs, maintenance tasks, alterations, and remodeling, but only if the

transaction is entered into in good faith.

(d) The landlord and tenant of any dwelling unit other than a single family residence may

agree that the tenant is to perform specified repairs, maintenance tasks, alterations, or

remodeling only if:

(l) the agreement of the parties is entered into in good faith and is set forth in a

separate writing signed by the parties and suppo1ted by adequate consideration;

(2) the work is not necessary to cure noncompliance with subsection (a)( l ) of this

section; and

(3) the agreement does not diminish or affect the obligation of the landlord to other

tenants in the premises.

(e) The landlord may not treat perfomiance of the separate agreement described in

subsection (d) as a condition to any obligation or perfonnance of any rental agreement.

10-4-5

Limitation of Liability

(a) Unless othe1wise agreed, a landlord who conveys premises that include a dwelling unit

subject to a rental agreement in a good faith sale to a bona fide purchaser is relieved of

liability under the rental agreement and this Title as to events occmTing after \\�·itten

notice to the tenant of the conveyance. However, he remains liable to the tenant for all

security recoverable by the tenant under PSST § l 0-4- l and all prepaid rent.

(b) Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of

liability under the rental agreement and this Title as to events occurring after written

notice to the tenant of the termination of his management.

PARTV

TENANT OBLIGATIONS

10-5-1

Tenant to Maintain Dwelling Unit

A tenant shall:

(a) comply with all obligations primarily imposed upon tenants by applicable provisions of

building and housing codes materially affecting health and safety;

(b) keep that part of the premises that he occupies and uses as clean and safe as the condition

of the premises permit;

( c) dispose from his dwelling unit all ashes, garbage, rubbish, and other waste in a clean and

. safe maimer;

(d) keep all plumbing fixtures in the dwelling unit or used by the tenant as clear as their

condition permits;

(e) use in a reasonable maimer all electrical, plumbing, sanitary, heating, ventilating, air

conditioning, and other facilities and appliances including elevators in the premises;

(f) not deliberately or negligently destroy, deface, damage, impair, or remove any part of the

premises or knowingly pem1it any person to do so;

(g) conduct himself and require other persons on the premises with his consent to conduct

themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the

premises, while using the premises only for the pu1pose as described in the lease

agreement; and

(h) not sublet, assign, or give up miy po1tion of their lease to a third party without the written

approval of the landlord.

10-5-2

Rules and Regulations

(a) A lmidlord, from time to time, may adopt a rule or regulation, however described,

concerning the tenant's use and occupancy of the premises. It is enforceable against the

tenant only if:

(I) its pmpose is to promote the convenience, safety, or welfare of the tenai1ts in the

premises, preserve the landlord's prope1ty from abusive use, or make a fair

distribution of services and facilities held out for the tenants generally;

(2) it is reasonably related to the purpose of which it is adopted;

(3) it applies to all tenants in the premises in a fair manner;

(4) it is sufficiently explicit in its prohibition, direction, or limitation of the tenant's

conduct to fairly infom1 him of what he must or must not do to comply;

(5) it is not for the pmpose of evading the obligations of the landlord; and

(6) the tenant has notice of it at the time he enters into the rental agreement, or when

it is adopted.

(b) Ifa mle or regulation is adopted after the tenant enters into the rental agreement that

works a substantial modification ofhis bargain it is not valid unless the tenant consents to

it in writing.

10-5-3

Access

(a) A tenant shall not umeasonably withhold consent to the landlord to enter into the

dwelling unit in order to inspect the premises, make necessary or agreed repairs,

decorations, alterations, or improvements, supply necessary or agreed services, or exhibit

the dwelling unit to prospective or actual purchasers, m011gagees, tenants, workmen, or

contracts.

(b) A landlord may enter the dwelling unit without consent ofthe tenant in case of

emergency.

ofemergency or unless it is impractical to do so, the landlord shall give the tenant at least

twenty-four (24) hours' notice of his intent to enter and may enter only at reasonable

times.

(d) A landlord has no other right ofaccess except:

(I ) pursuant to cout1 order;

(2) as permitted by FSST § 10-7-2 and FSST § I0-7-3(b); or

(3) unless the tenant has abandoned or surrendered the premises.

10-5-4

Tenant to Use and Occupy

Unless otherwise agreed, a tenant shall occupy his dwelling unit only as a dwelling unit. TI1e

rental agreement may require that the tenant notify the landlord ofany anticipated extended

absence from the premises no later than the first day ofthe extended absence. An absence is

deemed "extended" ifit is for more than fourteen (14) days.

PART VI

TENANT REMEDIES

10-6-1

Noncompliance by the Landlord - In General

(a) Except as provided in this Title, if there is a material noncompliance by the landlord with

the rental agreement or a noncompliance with FSST § I0-4-4 materially affecting health

and safety, the tenant may deliver a written notice to the landlord specifying the acts and

omissions constituting the breach and that the rental agreement will terminate upon a date

not less than thi11y (30) days after receipt of the notice ifthe breach is not remedied in

fifteen (15) days, and the rental agreement shall terminate as provided in the notice

subject to the following:

(I) If the breach is remedial by repairs, the payment of damages or othe1wise and the

landlord adequately remedies the breach before the date specified in the notice,

the rental agreement shall not tenninate by reason of the breach.

(2) The tenant may not tenninate for a condition caused by the deliberate or negligent

act or omission of the tenant, a member of his family, or other person on the

premises with his consent.

(b) Except as provided in this Title, the tenant may recover actual damages and obtain

injunctive relief for noncompliance by the landlord with the rental agreement or FSST §

10-4-4.

under FSST § 10-6-l(a).

(d) If the rental agreement is terminated, the landlord shall return all security recoverable by

the tenant under FSST § I 0-4-1 and all prepaid rent.

10-6-2

Failure to Deliver Possession

(a) If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in

FSST § 10-4-3, rent abates until possession is delivered and tenant may:

a. te1minate the rental agreement upon at least seven (7) days' written notice to the

landlord and upon termination the landlord shall return all prepaid rent and

security; or

b. demand perfmmance of the rental agreement by the landlord and, if the tenant

elects, obtain possession of the dwelling unit from the landlord or any person

Vffongfully in possession and recover the actual damages sustained by him.

(b) If a person's failure to deliver possession is willful and not in good faith, an aggrieved

person may recover from that person an amount not more than two (2) months' periodic

rent or twice the actual damages sustained, whichever is greater.

10-6-3

Self-Help for Minor Defects

(a) If the landlord fails to comply with the rental agreement or FSST § 10-4-4, and the

reasonable cost of compliance is less than One Hundred Dollars ($100.00), or an amount

equal to one-half (1/2) the periodic rent, whichever amount is greater, the tenant may

recover damages for the breach under FSST § 10-6-l(b) or may notify the landlord of his

intention to correct the condition at the landlord's expense. If the landlord fails to comply

within fourteen (14) days after being notified by the tenant in \\�·iting or as promptly as

conditions require in case of emergency, the tenant may cause the work to be done in a

workmanlike manner and, after submitting to the landlord an itemized statement, deduct

from his rent the actual and reasonable cost or the fair and reasonable value of the work,

not exceeding the amount specified in this subsection.

(b) A tenant may not repair at the landlord's expense if the condition was caused by the

deliberate or negligent act or omission of the tenant, a member of his family, or other

person on the premises with his consent.

Wrongful Failure to Supply Heat, Water, Hot \Vatcr, or Essential Services

10-6-4

(a) If contrary to the rental agreement or FSST § 10-4-3 the landlord willfully or negligently

fails to supply heat, running water, hot water, electricity, gas, or other essential service,

the tenant may give written notice to the landlord specifying the breach and may:

(I)

take reasonable and appropriate measures to secure reasonable amounts of heat,

hot water, running water, electric, gas, and other essential service during the

period of the landlord's noncompliance and deduct their actual and reasonable

cost from the rent; or

(2) recover damages based upon the diminution in the fair rental value of the

dwelling unit; or

(3) procure reasonable substitute housing during the period of the landlord's

noncompliance, in which case the tenant is excused from paying rent for the

period of the landlord's noncompliance.

(b) In addition to the remedy provided in paragraph (3) of subsection (a) the tenant may

recover the actual and reasonable cost or fair and reasonable value of the substitute

housing not in excess of an amount equal to the periodic rent.

FSST § 10-6-3 as to that breach.

(d) Rights of the tenant under this section do not arise until he has given notice to the

landlord or if the condition was caused by the deliberate or negligent act or omission of

the tenant, a member of his family, or other person on the premises with his consent.

10-6-5

Fire or Casualty Damage

(a) If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent

that enjoyment of the dwelling unit is substantially impaired, the tenant may:

(I) immediately vacate the premises and notify the landlord in writing within ten (I 0)

days thereafter of his intention to terminate the rental agreement, in which case

the rental agreement terminates as of the date of vacating; or

(2) if continued occupancy is lawful, vacate any part of the dwelling unit rendered

unusable by the fire or casualty, in which case the tenant's liability for rent is

reduced in proportion to the diminution in the fair rental value of the dwelling

unit.

(b) If the rental agreement is terminated the landlord shall return all security recoverable

under FSST § 10-4-1 and all prepaid rent. Accounting for rent in the event of termination

or apportionment shall be made as of the date of the fire or casualty.

10-6-6

Tenant's Remedies for Landlord's Unlawful Ouster, Exclusion, or

Diminution of Service

If a landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes

services to the tenant by intenupting or causing the inte1Tuption of heat, running water, hot

water, electric, gas, or other essential service, the tenant may recover possession or tenninate the

rental agreement and, in either case, recover an amount not more than two (2) months' periodic

rent or twice the actual damages sustained by him, whichever is greater. If the rental agreement

is tenninated the landlord shall return all security recoverable under FSST § 10-4-1 and all

prepaid rent.

PART VII

LANDLORD REMEDIES

10-7-1

Noncompliance with Rental Agreement; Failure to Pay Rent

(a) Except as provided in this Title, if there is a material noncompliance by the tenant with

the rental agreement or a noncompliance with FSST § 10-5-1 materially affecting health

and safety, the landlord may deliver a written notice to the tenant specifying the acts and

omissions constituting the breach and that the rental agreement will tenninate upon a date

not less than thi1ty (30) days after receipt of the notice. If the breach is not remedied in

fomteen (14) days, the rental agreement shall terminate as provided in the notice subject

to the following. If the breach is remediable by repairs or the payment of damages or

otherwise and the tenant adequately remedies the breach before the date specified in the

notice, the rental agreement shall not te1minate. If substantially the same act or omission

which constituted a prior noncompliance of which notice was given recurs within six (6)

months, the landlord may terminate the rental agreement upon at least fourteen (14) days'

written notice specifying the breach and the date of tennination of the rental agreement.

(b) If rent is unpaid when due and the tenant fails to pay rent within fomteen (14) days after

written notice by the landlord of nonpayment and his intention to terminate the rental

agreement if the rent is not paid within that period, the landlord may tern1inate the rental

agreement.

( c) Except as provided in this Title, the landlord may recover actual damages and obtain

injunctive relief for noncompliance by the tenant with the rental agreement or FSST § I 05-1.

10-7-2

Failure to Maintain

If there is noncompliance by the tenant with FSST § 10-5-1 materially affecting health and safety

that can be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails

to comply as promptly as conditions require in case of emergency or within fourteen (14) days

after \\�·itten notice by the landlord specifying the breach and requesting that the tenant remedy it

within that period oftime, the landlord may enter the dwelling unit and cause the work to be

done in a workmanlike manner and submit the itemized bill for actual and reasonable cost or the

fair and reasonable value thereofas rent on the next date periodic rent is due, or ifthe rental

agreement has terminated, for immediate payment.

10-7-3

Remedies for Absence, Nonuse and Abandonment

(a) Ifthe rental agreement requires the tenant to give notice to the landlord ofan anticipated

extended absence in excess offourteen (I 4) days pursuant to PSST § 10-5-4 and the

tenant willfully fails to do so, the landlord may recover actual damages from the tenant.

(b) During any absence ofthe tenant in excess offourteen (14) days, the landlord may enter

the dwelling unit at times reasonably necessary.

it at a fair rental. Ifthe landlord rents the dwelling unit for a tenn beginning before the

expiration ofthe rental agreement, it terminates as ofthe date ofthe new tenancy. Ifthe

landlord fails to use reasonable effmts to rent the dwelling unit at a fair rental or ifthe

landlord accepts the abandonment as a sun-ender, the rental agreement is deemed to be

tenninated by the landlord as ofthe date the landlord has notice ofthe abandonment. If

the tenancy is from month-to-month or week-to-week, the ten-n ofthe rental agreement

for this purpose is deemed to be a month or a week, as the case may be.

10-7-4

Waiver of Landlord's Right to Terminate

Acceptance ofrent with knowledge ofa default by the tenant or acceptance ofperformance by

him that varies from the terms ofthe rental agreement constitutes a waiver ofthe landlord's right

to terminate the rental agreement for that breach, unless otherwise agreed after the breach has

occmTed.

10-7-5

Landlord Liens; Distress for Rent

(a) A lien or security interest on behalfofthe landlord in the tenant's household goods is not

enforceable unless perfected before the effective date ofthis Title.

(b) Distraint for rent is abolished.

10-7-6

Remedy after Termination

Ifthe rental agreement is ten-ninated, the landlord has a claim for possession and for rent and a

separate claim for actual damages for breach ofthe rental agreement.

10-7-7

Recovery of Possession Limited

A landlord may not recover or take possession ofthe dwelling unit by action or otherwise,

including willful diminution ofservices to the tenant by interrupting or causing the inte1ruption

of heat, running water, hot water, electricity, gas, or other essential service to the tenant, except

in case of abandonment, surrender, or as permitted by this Title.

PART VIII

PERIODIC TENANCY; HOLDOVER; ABUSE OF ACCESS

10-8-1

Periodic Tenancy; Holdover Remedies

(a) The landlord or tenant may tenninate a week-to-week tenancy by a written notice given

to the other at least ten (I0) days before the termination date specified in the notice.

(b) The landlord or the tenant may te1minate a month-to-month tenancy by a written notice

given to the other at least sixty (60) days before the periodic rental date specified in the

notice.

term of the rental agreement or its termination, the landlord may bring an action for

possession.

10-8-2

Landlord and Tenant Remedies for Abuse of Access

(a) If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to

compel access, or terminate the rental agreement. In either case the landlord may recover

actual damages.

(b) If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or

makes repeated demands for entry otherwise lawful but which have the effect of

unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the

recun-ence of the conduct or terminate the rental agreement. In either case the tenant may

recover actual damages.

PARTIX

RETALIATORY CONDUCT

10-9-1

Retaliatory Conduct Prohibited

(a) Except as provided in this section, a landlord may not retaliate by increasing rent or

decreasing services or by bringing or threatening to bring an action for possession after:

(I) the tenant has complained to a governmental agency or board charged with

responsibility for enforcement of a building or housing code of a violation

applicable to the premises materially affecting health and safety; or

(2) the tenant has complained to the landlord of a violation under FSST § I 0-4-4; or

(3) the tenant has organized or become a member of a tenant's union or similar

organization.

(b) If the landlord acts in violation of subsection (a), the tenant is entitled to the remedies

provided in FSST § 10-6-6 and has a defense in any retaliatory action against him for

possession. In an action by or against the tenant, evidence of a complaint within [l) year

before the alleged act of retaliation creates a presumption that the landlord's conduct was

in retaliation. The presumption does not arise ifthe tenant made the complaint after

notice ofa proposed rent increase or diminution ofservices. "Presumption" means that

the trier offact must find the existence ofthe fact presumed unless and until evidence is

introduced which would support a finding ofits nonexistence.

(1) the violation ofthe applicable building or housing code was caused primarily by

lack ofreasonable care by the tenant, a member ofhis family, or other person on

the premises with his consent; or

(2) the tenant is in default in rent; or

(3) compliance with the applicable building or housing code requires alteration,

remodeling, or demolition which would effectively deprive the tenant ofuse of

the dwelling unit.

(d) The maintenance ofan action under subsection (c) does not release the landlord from

liability under FSST § 10-6-l(b).

PARTX

EFFECTIVE DATE; SAVINGS CLAUSE; SEVERABILITY

10-10-1

Effective Date

This Title shall become effective on the date it is approved by resolution of the Flandreau Santee

Sioux Tribe Executive Committee

10-10-2

Savings Clause

Transactions entered into before the effective date ofthis Title, and not extended or renewed on

and after that date, and the rights, duties, and interests flowing from them remain valid and may

be terminated, completed, consummated, or enforced as required or permitted by any statute or

other law amended or repealed by this Title as though the repeal or amendment had not occmTed.

10-10-3

Severability

If any provision ofthis Title or the application thereof to any person or circumstance is held

invalid, the invalidity does not affect other provisions or application of this Title which can be

given effect ,vithout the invalid provision or application, and to this end the provisions of this

Title are severable.

PART XI

TATEWJN APARTMENT COMPLEX

10-11-1

Premises Described

The Tatewin Apartment Complex is owned and operated by the Flandreau Santee Sioux Tribe,

and provides safe, affordable, and modern acconunodations for Tribal Elders. The complex

began taking tenants in 2009 and became fully operational in 2010. This Title applies to all

leases entered into between the Flandreau Santee Sioux Tribe and tenants at this facility. If any

buildings or additions are joined to the Tatewin Apatiment Complex, this Part will also apply to

leasing for those buildings.

10-11-2

Management of the Tatewin Apartment Complex

The Flandreau Santee Sioux Tribe is the sole owner of the Tatewin Apa1iments, however, the

management of the prope1ty will be conducted by the Tatewin Board. The Tatewin Board's

delegated powers are that of a landlord or property manager, and the Flandreau Santee Sioux

Tribe Executive Committee reserves its rights to dispose of any property of the Tatev,1in

Apatiments, to approve capital expenditures of more than $5,000 that are needed by the facility,

to pass any ordinance or resolution that could directly or indirectly affect the Tatev,1in

Apmtments, to approve personnel changes at the Tatewin Apartment Complex, and to handle all

other matters that are typically reserved to the owner of prope1ty.

10-11-3

Eligibility for Residence at the Tate·win Apartments

(a) To be eligible to reside at the Tatewin Apmtment complex, an individual must follow all

application procedures of the Tatewin Board, and must:

(1) be an emailed member of the Flandreau Santee Sioux Tribe;

(2) be certified with "On-Reservation Status" in accordance with Title 19 of the

Flandreau Santee Sioux Tribe Law and Order Code; and

(3) be sixty-two (62) years of age at the time when the individual will move into the

apartment.

(b) There will be no exceptions to this age and membership requirement as this apartment

complex was funded and designed to house only elder members of the Flandreau Santee

Sioux Tribe. Any tenants who are now living in the Tatewin Apartment Complex that do

not meet these eligibility requirements will be exempt from this section, and may

continue as tenants of the Tatewin Apartment Complex.

This Ordinance was passed by the Executive Committee on the f

2012, by Resolution# 12-�

'°?

ti,

�; day of September,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.