On Friday, May 22, the Iowa Supreme Court issued an Order: In the Matter of Ongoing Provisions for COVID-19 Impact on Court Services (“Order”) affecting residential evictions, with the state eviction moratorium expiring as of 11:59 p.m. on May 27. (See paras. 1-2, 7-9, and 37-40 of the Order.) This Order replaces all previous supervisory orders relating to COVID-19, sets new parameters for the scheduling of eviction hearings, and addresses the below three eviction-related topics.
- hearing requirements (Iowa Code § 648.5)
- 30-day peaceable possession bar (Iowa Code § 648.18)
- new filing requirement for evictions for nonpayment of rent--a CARES Act Landlord Verification
Eviction Filings to Recommence on May 28, with Hearings Likely Set or Reset after July 13
The Court addressed the general scheduling of FED/eviction hearings both for new actions to be filed after the state moratorium expires, as well as pending eviction actions.
First, the state eviction moratorium will expire at 11:59 p.m. on May 27 per Governor Reynolds’ announcement in today’s press conference. Thus, if and only if the CARES Act/federal moratorium does not apply to you (see prior blog post regarding the applicability of the CARES Act/federal moratorium), then you may recommence your filing of evictions actions on May 28.
Second, per the Order, the recommencement of hearings for pending and new eviction actions is generally pushed back another 30 days from prior orders. Per this new Order, eviction actions (except for the below noted exceptions), shall be set and/or reset to a date no earlier than July 13. Though, counties that have their new courthouse safety protocols in place and are ready to reopen their courthouses and hear cases prior to July 13 may choose to recommence their non-jury/bench trial hearings prior to that date. (See paras. 6 and 37 of the Order.)
In other words, it is likely that landlords who have pending actions with hearings set in June or otherwise prior to July 13 will unfortunately see those hearings continued again until sometime after July 13, and landlords filing new actions after May 28 will also likely have those hearings scheduled sometime after July 13. But, again, if counties are ready to hear cases prior to July 13, they may choose to set those hearings earlier - in June or early July. The Iowa Supreme Court has also encouraged all courts and parties to conduct civil matters via videoconference or telephone when feasible. (See paras. 8-9 of the Order.)
Finally, the Court reiterated that clear and present danger evictions are “emergency and essential” matters that may be heard by courts immediately. (see paras. 2, 8, and 9 of the Order.)
Scheduling of FED Hearings (Iowa Code § 648.5)
Due to the backlog of pending eviction cases, the backlog of previously continued eviction hearings, and the likelihood of a large number of new eviction cases being filed after the expiration of state or federal moratoria, there will undoubtedly be numerous instances in which the § 648.5(1) requirement for hearings to be set within 8 or 15 days from the filing date will not be met. Accordingly, in its Order, the Iowa Supreme Court clarified, in paragraph 39 of the Order, that the § 648.5(1) is not jurisdictional and will not bar any later scheduled eviction hearing.
Practice Pointer: If a small claims magistrate, or tenant, argues that your action should be barred due to § 648.5(1) or otherwise because the hearing was set outside of the 15-day period, you should direct the court to the specific language of the Order, providing as follows:
Although Iowa Code section 648.5(1) requires the date of hearing to be set no later than eight or, in certain circumstances, fifteen days from the filing date, the court recognizes that a number of factors may result in the scheduling of FED hearings beyond that fifteen-day time period. . . . Accordingly, the court clarifies that the requirement of a hearing within fifteen days is not jurisdictional, and that it is not a bar to a FED action being heard if the court, for scheduling reasons or to comply with the state and federal moratoria, is unable to hear the action by the deadline established in section 648.5(1). (Paragraph 39 of Order.)
30-Day Peaceable Possession Bar (Iowa Code § 648.18)
Many landlords are well aware of the 30-day peaceable possession doctrine under Iowa Code § 648.18, providing that “[t]hirty days peaceable possession with the knowledge of the plaintiff after the cause of action accrues is a bar to this proceeding.” Many of the newly filed eviction cases will be filed outside of the 30-day window of the tenant’s nonpayment of rent or breach of the lease. Accordingly, in its order, the Iowa Supreme Court clarified, in paragraph 40 of the Order, that the § 648.5(18) bar “does not apply where the plaintiff could not have initiated proceedings under chapter 648 due to a state or federal moratorium.” This provision of the Order will be important to landlords with eviction actions arising from events that occurred more than 30 days prior to the filing of the eviction.
Practice Pointer: If a small claims magistrate, or tenant, argues that your action should be barred due to the 30-day peaceable possession doctrine, you should direct the court to the following language of the Order:
[T]he section 648.5(18) bar does not apply where the plaintiff could not have initiated proceedings under chapter 648 due to a state or federal moratorium. (Paragraph 40 of Order.)
New Mandatory Filing for Nonpayment of Rent Evictions
The Iowa Supreme Court has mandated that landlords filing an eviction action for nonpayment of rent must complete and file a new court-approved CARES Act Landlord Verification. (See para. 37 of the Order.) A handful of other states have implemented a similar requirement. The Verification contains a list of Yes/No questions that a landlord must answer to verify that the CARES Act’s moratorium for nonpayment of rent evictions does not apply to the property and eviction at issue. The Court also provided helpful instructions to landlords regarding how to fill out the CARES Act Landlord Verification.
Notably, the Order states that the CARES Act Verification is not a jurisdictional requirement, which is favorable language for landlords. This means that if a landlord makes a mistake in completing and filing the CARES Act Verification at the time of the original eviction filing, the landlord should be able to correct any technical errors with testimony given at the hearing.
To reiterate, for evictions based upon nonpayment of rent filed after the state moratorium is lifted, landlords must complete and file the new CARES Act Landlord Verification. Please consult your attorney for further information.
Practice Pointer: If you have a small claims magistrate or court who mistakenly believes the CARES Act Landlord Verification must be filed for all evictions, you should direct the court to the specific language of the Order, which makes it clear that such verification is only needed for nonpayment of rent evictions:
Any plaintiff bringing a FED action under chapter 648 for nonpayment of rent after the date of this order shall submit a CARES Act Verification in a form approved by this court. (Paragraph 37 of Order)
Duties to Notify Court and Opposing Counsel of COVID-19 Risk
In the Order, the Court also imposed affirmative duties upon attorneys and parties participating in in-person business with any court to notify the court and opposing counsel regarding any elevated COVID-19 transmission risks and imposes additional duties upon attorneys to inquire of their clients and witnesses as to any elevated COVID-19 risk. (see para. 3-5 of the Order.)
Fraught Situation
Between the Governor’s proclamations, Iowa Supreme Court’s Order, and the continued federal moratorium, there are numerous spots where landlords may get tripped up. To avoid a situation where you are unable to carry out an eviction for nonpayment of rent or other reasons, landlords are encouraged to consult counsel to create a procedure to minimize risk.
