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War Eagle Village Apartments v. Plummer:

Iowa Supreme Court Issues Opinion Regarding Service of Original Notice in Eviction Cases

by Joseph Younker and Kevin Papp, Attorneys

December 2009 -- Last month, the Iowa Supreme Court issued a significant decision regarding the proper procedure for serving a residential tenant with the original notice in a forcible entry and detainer (“FED” or “eviction”) action. In War Eagle Village Apartments v. Plummer, No. 07-1217, 2009 WL 3878146 (Iowa 2009), the Court held that an Iowa Code provision allowing the Original Notice and Petition to be served by certified mail is unconstitutional. Specifically, the Court held that Iowa Code § 562A.29A(2), which provides that the original notice can be served by "sending notice by certified mail or restricted certified mail… whether or not the tenant signs a receipt for the notice" violates the due process clause of the Iowa Constitution. The full scope and impact of War Eagle is unclear, and amendments to the affected Iowa Code provisions are expected. In the meantime, however, landlords filing eviction actions should serve their Original Notices and Petitions by personal service.

Current Statutory Scheme

Chapter 648 of the Iowa Code sets forth the procedure regarding FEDs; Chapter 562A sets forth Iowa’s Uniform Residential Landlord and Tenant Act (“Landlord Tenant Act”). Under the current statutory scheme, a landlord may initiate an eviction proceeding by filing an original notice in Small Claims Court, or a Petition in District Court. The hearing must take place within seven days from the day on which the landlord files the Original Notice or Petition. See Iowa Code § 648.5 (providing that “the court shall order a hearing which shall not be later than seven days from the date of the order”). Additionally, the tenant must be served with notice of the hearing not less than three days prior to the hearing. Id.

The Landlord Tenant Act provides options for the method used to obtain service of the Original Notice and Petition upon the tenant. Specifically, Iowa Code § 562A.29A(2) (“Method of Notice Section”) provides that the Original Notice and Petition may be served upon the tenant in one of two ways: 1) by personal service (i.e., having the sheriff or a process server personally deliver a copy of the original notice to the tenant); or 2) by sending notice by certified or restricted mail, whether or not the tenant signs a receipt for the notice. Additionally, the Landlord Tenant Act provides that one gives notice to another by "taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it." Iowa Code § 562A.8. In the specific case of a tenant, "notice is received when it comes to the tenant’s attention or when it is delivered in hand to the tenant or mailed by certified mail…whether or not the tenant signs a receipt for the notice…." Id.

Under this scheme, if a landlord chooses to serve the Original Notice and Petition by certified mail, it is possible that service could be valid even if the tenant does not actually receive notice before the eviction hearing. In War Eagle, the Court examines this precise scenario.

War Eagle Facts

Landlord served tenant with a notice on July 17, 2006, stating that an eviction proceeding would be initiated, unless tenant paid her delinquent rent within three days. Tenant failed to pay the delinquent rent, so landlord initiated a FED by filing an original notice on July 24. The court scheduled the FED hearing for July 31, which was within the statutorily mandated seven day window. Landlord chose to serve the original notice by certified mail, which notice was mailed on July 24, 2006. Tenant failed to appear at the hearing, so the court entered a default judgment and ordered tenant to vacate the premises. Tenant appealed the default, claiming that she did not receive the original notice informing her of the July 31 hearing until August 2 when she retrieved a certified letter from the post office.

The Court also noted the United States Post Office’s general procedure regarding certified letters. Generally, a carrier attempts to deliver a certified letter to the door of the addressee. If the addressee is home, the carrier obtains the individual’s signature on a certain form and delivers the letter. If the carrier is not able to obtain the addressee’s signature on the form, then the carrier leaves a copy of the form in the mailbox. The form informs the addressee that he or she can pick up the letter at the post office within the next fifteen days. Additionally, some post offices also mail the form to the addressee, so that that it arrives five days after the first form was left in the mailbox. The tenant in War Eagle testified that she received the mailed form on August 1 – the day after the scheduled hearing. She took the form that she had received in the mail to the post office the next day and received the letter containing the original notice.

Court’s Legal Analysis

The Court held that the certified mail option under the Method of Notice Section is unconstitutional as a violation of the due process provision of the Iowa Constitution. The due process provision of the Iowa Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law." Iowa Const. art. I, § 9. The Court recognized that a significant property interest is a stake within the eviction context – the tenant’s right to continue living in his or her home. This property interest triggers due process protections.

After discussing various due process considerations, the Court concluded that the certified mail option under the Method of Notice Section (§ 562A.29A(2)), when read in conjunction with § 562A.8 (which provides that service is complete upon mailing, i.e., it is not necessary that the tenant actually receive the letter), allows a process that is not reasonably calculated to provide tenants with adequate notice of their eviction hearings. According to the Court, "this scheme gives the illusion, but not the reality, of due process."

The Court noted two major factors in support of its conclusion. First, the FED statutory scheme deems notice complete upon mailing – not receipt. The Court stated that "[d]ropping a letter in a mailbox is not notice, yet is deemed sufficient notice." Second, given the seven day time frame between the order setting the hearing and the hearing, the use of the certified mail option under the Method of Notice Section (§ 562A.29A(2)) makes it less likely that the tenant will receive adequate notice before the hearing. The Court noted that "the reality is that, even if a tenant receives the notice prior to the hearing, the tenant is unlikely to receive it in time to meaningfully participate in the hearing."

The Court did not limit its holding to the facts before it in War Eagle. Rather, the Court held that § 562A.29A(2) is unconstitutional on its face. In other words, serving the original notice by the method set forth in § 562A.29A(2) cannot provide adequate notice under any set of circumstances.

Consequences of Opinion

Section 562A.29A(2) applies to residential leases in general. A nearly identical set of notice requirements, however, is set forth in §§ 562B.27A(2) and 562B.9 regarding leases in manufactured home communities and mobile home parks. Presumably, the Iowa Supreme Court would also find § 562B.27A(2) to be unconstitutional for the reasons set forth in War Eagle. Thus, to be safe, landlords seeking evictions from manufactured home communicates and mobile home parks should personally serve their Original Notices and Petitions.

Although War Eagle only addresses the service of the original notice in an eviction action, the Court’s analysis certainly raises concerns as to the validity of serving other three day notices often incurred in the landlord-tenant context, such as three day notices to quit under Iowa Code § 648.3, three day notices of intent to terminate for nonpayment of rent under Iowa Code §§ 562A.27(2), 562B.25(2), and three day notices of intent to terminate for clear and present danger under Iowa Code §§ 562A.27A(1), 562B.25A(1) Because of the confusion generated by the War Eagle decision, landlords would be well-advised to personally serve these types notices whenever possible.

The Iowa State Bar Association is in the process of submitting proposed language to revise the Landlord Tenant Act in light of War Eagle. We anticipate that the Legislature will address the War Eagle issues in its upcoming session.

Please contact our office at (319) 466-1511 (Iowa City) or (319) 363-0101 (Cedar Rapids) if you have questions or if you would like our assistance in complying with the War Eagle requirements.