Recently, we have seen county magistrates in at least Linn, Wapello, Muscatine and Black Hawk Counties dismiss eviction actions based upon supposed insufficient service of the underlying notices that were the basis for the eviction. Landlords in these counties must take note of our new recommendations for service based upon these recent rulings and implement them when they encounter challenges in these counties.
In certain counties, we have seen some magistrates rule that landlords, when serving a notice via posting and mailing, are required to provide heightened levels of proof of the posting and mailing, as well as show that each tenant was served with a separate posting and mailing of the notice. These magistrates are requiring new and heightened requirements for proof of service of notices; one of these rulings has been affirmed on appeal. The various statewide landlord associations are working together to obtain a legislative remedy in 2023 to the inconsistency among counties regarding these service issues, but in the meantime, landlords should follow our new best practice recommendations on how service by posting and mailing should be handled when landlords encounter magistrates requiring these heightened service requirements.
Iowa Code Requirements for Service
Under Iowa law, landlords are required to serve all termination notices in one of three manners:
- Delivery evidenced by a signed acknowledgment by a resident of the unit;
- Personal service through the Sheriff’s office or a private process server; or,
- Posting and mailing via regular and certified mail to the tenants.
Both Iowa Code Chapters 562A, affecting single- and multi-family rentals, and 562B, affecting manufactured housing communities, have identical service requirements when posting and mailing a notice. Specifically, those statutes require the notice be:
- Posted on the primary entrance door of the dwelling unit with the date the notice was posted shown somewhere on the notice itself, AND
- Mailed by both regular mail and certified mail to the address of the unit/home or to the tenant’s last known address, if different from the address of the unit.
As a reminder, the Iowa Code also provides that if a notice is served via this post-and-mail method, the notice is not considered served until four days after the notice is sent via mail; meaning, for example, that a three day notice of nonpayment effectively becomes a seven day notice of nonpayment.
New Recommendations for Counties Requiring Heightened Service Requirements
Based on our experiences and those of several of our clients, we recommend the following process for serving via posting and mailing in counties requiring heightened service requirements.
1. Best Practices for Posting (on primary entrance/door of the leased premises)
- Do not fold the notice. Tape it flat to the door so that the content and pictures are visible.
- Handwrite somewhere on the notice “Posted on *insert date,*”
- Take one or more photographs so the photograph(s) show the title of the document and the handwritten “Posted on” language, as well as the address and unit number of the leased premises.
2. Best Practices for Mailing (via both regular mail and certified mail to the address of the leased premises)
- For the certified mail, provide the court with a copy of the green certified mail receipt with the red date stamp and tenant address on it.
- For the regular mail, and if the magistrate so requires, provide the court with some type of proof of the regular mailing, which could include taking a photograph of the envelope with a postage stamp on it, getting a receipt from the post office, or having the mailing documented in a USPS journal/notebook of mailings.
- To proceed with an abundance of caution, pay for both the regular and certified mail postages at the post office and obtain a receipt for all mailings.
3. Each Tenant and “Parties in Possession” Must Receive a Separate Notice Via Posting-and-Mailing
- For magistrates who require it, there must be a separate notice for each tenant and for “Parties in Possession.” So, for leased premises with two tenants, there should be three posted notices, three regular mailings, and three certified mailings. If someone is just an approved resident (such an adult resident who is not a tenant), those people are covered as “Parties in Possession” and do not need an individual copy.
Various statewide landlord associations are working together in an attempt to obtain a legislative remedy in 2023 to the inconsistency among counties with regard to these service issues, but in the meantime, landlords should follow our recommendations when they encounter problems.