In the course of business, chances are a landlord will eventually encounter a situation where their tenant fails to pay rent, and they believe they have the right to evict. The landlord would like the tenant to vacate the premises as soon as possible, but is unsure of how to proceed. So what do they do? Change the locks and remove all of their property? Call the police? Send a large number of texts or emails?
If a landlord wants an eviction to be fully enforceable and legal, the Iowa Code has very specific requirements that must be followed that include both paperwork and the court (and potentially the sheriff), or their eviction will certainly fail. Below can be found a brief overview of the steps that must be taken in order to properly evict non-paying tenants.
Termination for Nonpayment of Rent (see Iowa Code §562A.27(2))
Upon failure of a tenant to pay the rent required by the lease agreement the landlord must provide the tenant with a document called a Three (3)-Day Notice of Nonpayment of Rent. This Notice must include the amount of rent owed, any late fees listed in the lease, and a statement that the lease will terminate if the tenant does not pay within three full days. This Notice must be properly served on the tenant either by a process server, personal delivery, or certified mail. Keep in mind that a landlord can likely only request one specific month’s rent and late fees in this Notice, but is not prevented from pursuing other past due rent through a separate action.
If the tenant pays the total rent and fees requested in full within the three-day period it must be accepted by the landlord. However, the landlord has no duty to accept any partial payments or payment plans after delivering the Notice. If the landlord chooses to accept partial payments, they may be waiving their ability to proceed with the eviction. If the tenant fails to pay in full as requested within the three-day period, the landlord then may initiate an Action for Forcible Entry and Detainer (FED).
Action for Forcible Entry and Detainer (see Iowa Code Chapter 648)
After serving the Notice the landlord must be sure to wait three full days before attempting to begin an FED. It may be prudent to wait three full business days, to ensure compliance with the code. (Example- the landlord files the Notice on the first of the month and must wait until the fifth of the month to begin the FED, giving the tenant three full days in between to cure.)
An FED may only be used for the landlord to gain possession of the property back from the tenant. The landlord must use other means, most likely small claims court, to attempt to win any unpaid rent or fees from the noncompliant tenant.
The FED is filed with the clerk of court in the county where the property is located. The landlord should include the Notice and proof of service of the Notice with their FED filing. The clerk will then issue a notice of a court date regarding the FED at which both the landlord and the tenant will be required to appear. The landlord must then properly serve the FED, FED court date notice, and any other attached documents to the tenant by process server, personal delivery, certified mail, or other allowed means. The FED should be served as soon as possible as the tenant must receive service of those documents a minimum of three full days before the court hearing.
The landlord and tenant can reach any agreement amongst themselves prior to the court making a determination at the FED hearing, but are not required to do so by law.
At the FED hearing, the court will first evaluate whether the landlord has given all of the required notices through the proper service channels. If not, the court will kick the case out regardless of whether rent has been paid or not. The landlord should document proof of the written documents and proof that they were served on the tenant.
If the tenant appears at the FED hearing the court will allow them a chance to explain why they have not paid their rent as required. The landlord should bring proof of the amount owed by the tenant and any documentation showing payment has not been made as required by the lease.
If the court finds in favor of the landlord the landlord will be entitled to possession of the property three days after the hearing. However, if the tenant does not appear the landlord is entitled to immediate possession of the property. The court will make a ruling regarding whether the tenant is in violation of the lease and when and if the landlord is entitled to possession of the property.
Writ of Removal and Physical Eviction
If the court rules in the landlord’s favor and grants an order for possession the tenant will then have (depending on the order) three days to vacate the property or they must vacate immediately.
If the tenant remains in the property beyond the time allowed by the court’s order or if the landlord obtained immediate possession from the order, the landlord must then obtain a Writ of Removal from the clerk of court. The landlord cannot remove the tenant or their possessions on their own.
The clerk will then issue a Writ of Removal, which will then be delivered to the Sheriff of the county. The landlord will then need to go to the Sheriff’s office to fill out the paperwork and directions required by the Sheriff. The Sheriff then, on an agreed-upon date, will visit the property and supervise and enforce the mandatory moving out of the tenant. The landlord must provide workers and equipment for the removal of the tenant’s belongings if the tenant refuses to cooperate. The tenant’s possessions may then be moved out of the property and onto the public right of way. The possessions should not be left inside the property or taken to any private location.
If the landlord has other claims against the tenant (unpaid rent, damage to property, etc.) the landlord must bring these claims in a separate civil action. The likely proper outlet would be small claims court (if the total damages being sought are under $5,000).
It is possible that a landlord may wish to evict a tenant for creating a clear and present danger, violating the terms of the lease, or some other reason beyond unpaid rent. These evictions are also strictly controlled by the Iowa Code and should be fully understood before undertaking.
If you have any questions or concerns regarding the eviction of a tenant, please contact Holly A. Corkery at Lynch Dallas, P.C. at email@example.com or (319) 365-9101.