Emotional Support Animal (ESA) Letters & Laws in South Dakota

South Dakota did the unusual thing: it described the bad letter

Most states leave the emotional support animal unmentioned and let landlords and tenants argue about paperwork with nothing to argue from. A few define the animal. South Dakota went one step further, in 2018, and wrote down what the documentation has to be: including a clause aimed squarely at the businesses that sell certificates.

SDCL 43-32-35, in full:

“The supporting documentation shall confirm the tenant’s disability and the relationship between the tenant’s disability and the need for the requested accommodation. The documentation shall originate from a licensed health care provider who does not operate in this state solely to provide certification for service or assistance animals.”

Read that last clause slowly, because it is doing something no other statute in this corpus does. Alabama lists licence types. Montana says nothing at all. South Dakota disqualifies a provider by describing its business model: if the whole of what you do in South Dakota is issue certificates for animals, the documentation you produce does not satisfy the section.

That is not a rule against telehealth, and it is not a rule against out-of-state clinicians: the words are “does not operate in this state solely to provide certification,” and they are about the shape of the practice, not its address. A South Dakota-licensed clinician who sees patients and also writes housing determinations is comfortably inside it.

And it wrote the emotional support animal in by name

The definition that governs those documentation sections is SDCL 43-32-33:

“For the purposes of §§ 43-32-34 to 43-32-36, inclusive, the term, service animal, refers to any animal that serves a role for an individual with a disability as an emotional support animal, any therapy animal, or any assistance animal…”

South Dakota’s neighbour Montana wrote the emotional support animal out of its service-animal definition in 2019. South Dakota had written it in the year before.

But notice the opening six words. “For the purposes of §§ 43-32-34 to 43-32-36”. The definition is bolted to the three documentation sections and travels nowhere else. It does not amend SDCL 20-13, where the same phrase means something much narrower, and anyone who quotes 43-32-33 as though it were a general South Dakota definition is over-reading it by a wide margin.

What the landlord may ask, and when they may not

SDCL 43-32-34 gives a South Dakota landlord an express statutory right to ask:

“A landlord may require reliable supporting documentation be provided by a tenant of a rental dwelling unit, if the tenant asserts a disability requiring under any provision of law that a service animal or assistance animal be allowed as an accommodation on the rented premises.”

There is no arguing with that. A South Dakota landlord who asks for documentation is doing what the code permits, and a tenant who treats the question as an insult starts the conversation badly.

The same section closes the door in one situation:

“A landlord may not require supporting documentation from a tenant if the tenant’s disability or disability-related need for a service animal or assistance animal is readily apparent or already known to the landlord.”

Three words in the first sentence carry the rest of this page: “under any provision of law.” Section 43-32-34 does not create the right to keep the animal. It regulates the proof of a right that comes from somewhere else, which raises the obvious question of where.

Where the South Dakota right actually comes from

Two places, and the first one is federal.

42 U.S.C. § 3604(f)(3)(B), the Fair Housing Act’s reasonable-accommodation duty, applies to South Dakota rentals on its own terms. Nothing in the South Dakota code narrows it. For most tenants it is the load-bearing provision.

The state provision is a single sentence, SDCL 20-13-23.7:

“For purposes of employment, public accommodation, public service, and education or housing, good faith efforts shall be made to reasonably accommodate the disabled person unless the accommodation would impose undue hardship.”

And here is the complication an honest South Dakota page has to handle rather than hide. Thirteen sections earlier sits SDCL 20-13-21.1:

“Nothing in this chapter requires any person selling, renting, or leasing property … to modify the property in any way, incur any additional expenses or exercise a higher degree of care for a person having a disability than for a person who does not have a disability.”

At first reading those two sentences fight. They do not, and the session-law citations are why: 20-13-23.7 is section 4 of chapter 170 of the 1986 session laws, and 20-13-21.1 is section 14 of that same chapter. One legislature, one bill, ten sections apart. Read together, section 4 imposes the good-faith accommodation duty and section 14 marks out three things it does not require: modifying the property, incurring additional expenses, exercising a higher degree of care.

Waiving a no-pets rule is none of those three. It alters a rule, not the building. It costs the landlord nothing. It asks for no heightened standard of care.

That reading is not decided law, no South Dakota case construing the two sections against each other was read for this page. What supports it from inside the code is the remedies section. SDCL 20-13-35.1 provides that “punitive damages may be awarded under § 21-3-2 for a violation of §§ 20-13-20 to 20-13-21.2, inclusive, 20-13-23.4, 20-13-23.7, or 20-13-26,” and that attorneys’ fees and costs may go to the prevailing party in housing matters. A legislature does not attach punitive damages to a section that requires nothing of anyone.

The section that looks like your answer and is not

SDCL 20-13-23.4 bars a landlord from prohibiting “the keeping of a service animal” in a rented residence. It is the obvious place to look and it will not help you:

“No landlord may prohibit by lease or otherwise the keeping of a service animal by a person who is totally or partially physically disabled, totally or partially blind, or totally or partially deaf in an apartment or other rented or leased residential property.”

The list of covered people ends there. Psychiatric and mental disability are not in it, and that is not an oversight of a bygone era. In 2020 the legislature amended the public accommodations section, SDCL 20-13-23.2, to insert the words “or has a psychiatric disability or mental disability.” It did not touch 20-13-23.4, which has stood unamended since 1995.

So a South Dakota tenant with a psychiatric disability has the documentation sections, the good-faith duty in 20-13-23.7, the terms-and-conditions prohibition in 20-13-20(2), and the federal Act. They do not have 20-13-23.4.

Money: the cap, and the fee South Dakota never banned

SDCL 43-32-6.1 caps a residential security deposit at one month’s rent, and does it with a phrase worth knowing:

“A lessor of residential premises may not demand or receive a security deposit, however denominated, in an amount or value in excess of one month’s rent except that a larger deposit may be agreed upon between the lessor and the lessee where special conditions pose a danger to maintenance of the premises.”

“However denominated” means a pet fee cannot be stacked on top of a full deposit by calling it something else. The exception above the cap needs agreement and a genuine danger to the premises; it is not a landlord’s unilateral surcharge.

But be precise about what that section is. It is a cap, not a fee bar. South Dakota has no statute saying an assistance animal may not be charged for. The charge comes off, where the animal is a genuine accommodation, through SDCL 20-13-20(2), discrimination because of disability “in the terms, conditions, or privileges” of a rental, and through the federal Act. That is an argument, and it wins in the ordinary case, but it is an argument.

Getting the deposit back is better regulated than most states manage. Under SDCL 43-32-24, amended this year, the lessor has twenty-one days from termination and receipt of your address to return the deposit or furnish written reasons, must provide an itemised accounting within forty-five days on request, and (the sentence that matters), a lessor who fails to comply “forfeits all rights to withhold any portion of the deposit.”

The honest other half: damage the animal actually does sits inside 43-32-24’s restoration ground. An accommodation is permission to keep the animal despite a rule. It is not indemnity for what the animal does.

The fraud section, and why it is the reason to do this properly

SDCL 43-32-36:

“If a person is found to have knowingly made a false claim of having a disability that requires the use of a service animal or assistance animal or of knowingly providing fraudulent supporting documentation in connection with such a claim, a lessor may evict a lessee and the lessor is entitled to a damage fee, not to exceed one thousand dollars…”

The word to hold onto is “knowingly.” A request that is genuine and fails is not within this section. A document you knew to be manufactured is, and it costs you the tenancy plus up to a thousand dollars.

Put 43-32-35 and 43-32-36 side by side and South Dakota’s whole design shows: the state told you what a real letter looks like, and then told you what happens if you bring a fake one.

If a South Dakota landlord says no

A charge goes to the Division of Human Rights, inside the Department of Labor and Regulation. SDCL 20-13-31 sets the window:

“Any charge filed under this chapter shall be filed within one hundred and eighty days after the alleged discriminatory or unfair practice occurred.”

180 days, and unlike Montana’s equivalent there is no discovery language anywhere in it. The clock runs from the refusal.

One structural feature to know before you file. Under SDCL 20-13-35.1, within twenty days of the notice requiring an answer, either party may elect to have the claim decided in a civil action instead, and once that election is made the Division “has no further jurisdiction over the parties.” A landlord can move your charge into court whether you wanted that or not. The civil action must then be filed within one year of the election.

What has to happen first

South Dakota is the state where the letter itself is regulated, which changes the order of operations. Elsewhere the question is whether a landlord will accept your documentation. Here the question is first whether your documentation meets SDCL 43-32-35: confirms the disability, confirms the relationship between the disability and the need, and comes from a licensed health care provider whose South Dakota activity is not solely the issuing of certificates.

If you already see a therapist, counsellor or prescriber, start there. They know your history, they satisfy 43-32-35 without anyone having to think about it, and it costs nothing beyond the appointment. That route is genuinely harder in South Dakota than almost anywhere: outside Sioux Falls, Rapid City and the university towns many counties have no practising mental health clinician at all, waits run to months, and some practices decline to write housing documentation as a matter of policy. Those frictions are real and they are why this route fails for people who would otherwise take it.

Where it is closed, a licensed evaluation is the same examination arranged deliberately. A licensed clinician assesses whether you have a disability and whether this animal is connected to it, and then either writes the determination or explains that they cannot. Both endings are real. A service whose answer is fixed before you arrive is exactly the operation SDCL 43-32-35 describes and excludes, and in South Dakota, unusually, you can point at the sentence that says so.