August 19, 1983

Mr. Arthur L. Rusch 
Clay County State's Attorney 
Post Office Box 435 
Vermillion, South Dakota 57069

Official Opinion No. 83-26

Continuation of Fixture Filings

Dear Mr. Rusch:

You have requested an official opinion in regard to the following factual situation:

FACTS: 

Under South Dakota law, security interests in fixtures which are referred to as 'fixture filings' are made in the office of the Register of Deeds.  SDCL 57A-9-313(1)(b). 

Such a 'fixture filing' must be filed for record in the real estate records.  SDCL 57A-9-402(5).  Commonly this is accomplished by the Register of Deeds by recording the security interest in the same manner as a real estate mortgage. 

The financing statement is effective for a period of five years and sixty days.  SDCL 57A-9-403(2).  However, it may be continued in effect by the filing of a continuation statement prior to the lapse.  

SDCL 57A-9-403(2).   Although a 'fixture filing' which was recorded in the same manner as a real estate mortgage would have to have the real estate description, there is no similar requirement that a continuation statement contain a description of the real estate.  SDCL 57A-9-403(3).

Based upon the following factual situation, you have asked the following question:

QUESTION: 

Is it necessary to record the continuation statement with the real estate mortgage in the same way that the original 'fixture filing' was recorded or is a person who observes a 'fixture filing' in the real estate mortgage records placed upon notice of the existence of the fixture filing and therefore obligated to check the continuation statements?

It is my opinion that it is not necessary to record the continuation statement with the real estate mortgage as the original 'fixture filings' are recorded.

I find no statutory requirement necessitating this filing.  Note that one checking the records also has access to the Uniform Commercial Code filings, the land index, the mortgagor-mortgagee book and usually a numerical book of filings.

Respectfully submitted,

Mark V. Meierhenry
Attorney General