[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

Legal Opinion: GCH-0079

Index: 2.245

Subject: PH Due Process Determination: Iowa

October 5, 1992

DUE PROCESS DETERMINATION

for the

STATE OF IOWA

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of Iowa Eviction Procedures.

IV\. Analysis of Iowa Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: State of Iowa.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of 1937 (42 U.S.C.

1437d(k), as amended by section 503(a) of the National Affordable
Housing Act

of 1990, Pub. L. 101-625, approved November 28, 1990), provides that:

For any grievance concerning an eviction or termination of tenancy that

involves any criminal activity that threatens the health, safety, or

right to peaceful enjoyment of the premises of other tenants or

employees of the public housing agency or any drug-related criminal

activity on or near such premises, the agency may . . . exclude from its

grievance procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing in court

which the Secretary determines provides the basic elements of due

process . . . .

The statutory phrase \"elements of due process\" is defined by HUD at 24

CFR Section 966.53(c) as:

. . . an eviction action or a termination of tenancy in a State or local

court in which the following procedural safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for terminating the

tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence presented by the

PHA including the right to confront and cross-examine witnesses

and to present any affirmative legal or equitable defense which

the tenant may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures satisfy this

regulatory definition is called a \"due process determination.\" The
present

due process determination is based upon HUD\'s analysis of the laws of
the

State of Iowa to determine if eviction procedures under those laws
require a

hearing with all of the regulatory \"elements of due process,\" as
defined in

Section 966.53(c).

HUD finds that the requirements of Iowa law governing a forcible
detainer

action in the district courts of Iowa under Iowa Code Annotated (I.C.A.)

Chapters 631 and 648, and Chapter 562A (the Uniform Residential Landlord
and

Tenant Act, \"U.R.L.T.A.\"), and the Iowa Rules of Civil Procedure
(I.R.C.P.),

include all of the elements of basic due process, as defined in 24 CFR

Section 966.53(c).

III\. Overview of Iowa Eviction Procedures

In Iowa there are two methods for a landlord to recover possession of

real property from a tenant. A landlord may bring either: (1) a forcible

detainer action in the district court pursuant to I.C.A. Chapter 648, or
(2) a

forcible detainer action by a small claim proceeding in the district
court

pursuant to I.C.A. Chapter 631. Both forms of forcible detainer are
subject

to the U.R.L.T.A. (I.C.A. Chapter 562A).

Under the U.R.L.T.A., upon termination of the rental agreement, the

landlord may bring a forcible detainer action in the district court
pursuant

to I.C.A. Chapters 631 or 648. A landlord may commence an action based
on

nonpayment of rent or material noncompliance with the rental agreement
by the

tenant, or against any person wrongfully in possession after termination
of

the rental agreement or rental term (I.C.A. Sections 562A.27, 648, and
631).

I.C.A. 562A.27 provides that:

Except as otherwise provided in this chapter, if there is a material

noncompliance by the tenant with the rental agreement . . . , the

landlord may deliver a written notice to the tenant specifying the acts

and omissions constituting the breach and that the rental agreement will

terminate upon a date not less than thirty days after receipt of the

notice if the breach is not remedied in fourteen days, and the rental

agreement shall terminate as provided in the notice subject to the

provisions of this section . . .

Section 648.1 provides that:

A summary remedy for forcible . . . detention is allowable:

1\. Where the defendant has by force, intimidation, fraud, or

stealth entered upon the prior actual possession of another

in real property, and detains the same.

2\. Where the lessee holds over after the termination of the

lease.

3\. Where the lessee holds contrary to the terms of the lease .

. . \[and\]

5\. For the nonpayment of rent, when due.

I.C.A. 631.1 provides that \"\[t\]he district court sitting in small
claims

shall have concurrent jurisdiction of an action for forcible entry and

detainer which is based on those grounds set forth in section 648.1

subsections 1, 2, 3 and 5.\"

The forcible detainer action is also subject to the I.R.C.P. The

I.R.C.P. govern the practice and procedure in all courts of the state,
except

where the rules or statues provide otherwise (I.R.C.P. Rule 1).

A forcible detainer action is subject to Article I, Section 9 of the

Iowa State Constitution, which provides that \"no person shall be
deprived of

life, liberty, or property without due process of law.\" The Iowa
Supreme

Court has found this clause to be identical in scope and purpose to the

Fourteenth Amendment of the United States Constitution. Therefore, when

interpreting the Iowa due process clause, the Iowa Supreme Court will
look to

the United States Supreme Court\'s interpretation of the Fourteenth
Amendment

for guidance. Chicago Title Ins. Co. v. Hudd, 256 N.W.2d 17, 23 (Iowa
1977);

Davenport Water Co. v. Iowa State Commerce Commission, 190 N.W.2d 583,
593

(Iowa 1971).

IV\. Analysis of Iowa Eviction Procedures for Each of the

Regulatory Due Process Elements

The following analysis considers whether each element of HUD\'s
regulatory

due process definition is satisfied in an action for forcible detainer

commenced in the Iowa district courts (including the court sitting in
small

claims). The small claims procedure under I.C.A. Chapter 631 appears to
be an

abbreviated form of the forcible detainer action under I.C.A Chapter
648. The

primary distinction is that the small claims procedure provides a
condensed

timetable to expedite the eviction. Thus a small claims action is the

preferred action for a landlord seeking quick eviction. The analysis
notes

differences between procedures in the \"regular\" district court versus
the

district court sitting in small claims.

A. Adequate notice to the tenant of the grounds for terminating the

tenancy and for eviction (24 CFR Section 966.53(c)(l))

Notice to Terminate Tenancy

Prior to commencing a forcible detainer action in the Iowa district

courts, a landlord must first notify the tenant in accordance with the

U.R.L.T.A. that the landlord intends to terminate the tenancy.
Specifically,

I.C.A. 562A.27(l) provides that:

Except as otherwise provided in this chapter, if there is a

material noncompliance by the tenant with the rental agreement . .

. , the landlord may deliver a written notice to the tenant

specifying the acts and omissions constituting the breach and that

the rental agreement will terminate upon a date not less than

thirty days after receipt of the notice if the breach is not

remedied in fourteen days, and the rental agreement shall

terminate as provided in the notice subject to the provisions of

this section . . .

I.C.A. 562A.27(l) states that if substantially the same act or omission

which constituted a prior noncompliance of which notice was given recurs

within six months:

the landlord may terminate the rental agreement upon at least

fourteen days\' written notice specifying the breach and the date

of termination of the rental agreement.

For an unlawful detainer in the regular district court, I.C.A. 648.3

provides that:

Before action can be brought . . . three days\' notice to quit must

be given to the defendant in writing.

The thirty day written notice under I.C.A. 562A.27 is separate and
distinct

from the three-day notice to quit under I.C.A. 648.3.

Notice at Commencement of Action

In addition to the notice to terminate tenancy, the I.C.A. and the

I.R.C.P. require that a forcible detainer action brought in the district
court

must be commenced by the filing of a petition served on the defendant.

I.R.C.P. Rule 48 (for any detainer action), and I.C.A. Chapter 648 (for
a

detainer action in the regular district court). I.R.C.P. Rule 69(a)
states

that the petition must contain: (l) a short and plain statement of the
claim

which shows that the pleader is entitled to relief; and (2) a demand for

judgment.

I.R.C.P. Rule 49 also requires that the defendant be given notice of the

petition:

The original notice shall contain the name of the court and the

names of the parties, be directed to the defendant . . . and the

time within which these rules require the defendant to serve, and

within a reasonable time thereafter file, a motion or answer, and

shall notify the defendant that in case of the defendant\'s failure

to do so, judgment by default will be rendered against the

defendant for the relief demanded in the petition . . .

Finally, I.R.C.P. Rule 56.1 establishes the procedures for personal

service of the petition on a defendant. Alternatively, in those
instances

where personal service cannot be obtained, the petition may be served by

publication in accordance with I.R.C.P. Rule 60.

In small claims court, all actions are commenced by filing of an

original notice with the clerk (I.C.A. 631.3). I.C.A. 631.4(2)(b)
provides

that the \"\[o\]riginal notice shall be served personally upon each
defendant as

provided in rule 56.1 . . . which service shall be made at least five
days

prior to the date set for hearing.\"

Notice: Conclusion

Hence, the U.R.L.T.A. notice of termination requirements under I.C.A.

562A.27(1), and the rules governing the contents and delivery of the
petition

satisfy the HUD due process requirements set forth at 24 CFR

Section 966.53(c)(l) regarding adequate notice to the defendant.
Adequate

notice of the grounds for terminating the tenancy and for eviction is
also

required by the due process clause of the Iowa Constitution (Article I,

Section 9).

B. Right to be represented by counsel (24 CFR Section 966.53(c)(2))

The right of a defendant in civil matters to be represented by counsel

is implied throughout the rules of civil procedure. See, for example,

I.R.C.P. Rule 49 (plaintiff\'s petition should clearly indicate the name
and

address of the plaintiff\'s attorney); Rule 52 (an attorney may take an

acknowledgement of service and may mail a copy of the original notice
when

mailing is required or permitted).

I.R.C.P. Rule 65 governs appearances by counsel in district court

proceedings. Rule 65 specifically states:

An attorney making an appearance shall, either by filing written

appearance or by signature to the first pleading or motion filed

by the attorney, clearly indicate the attorney or attorneys in

charge of the case and shall not sign in the name of the firm

only. Such appearance shall entitle the attorney to serve as

provided in I.R.C.P. 82.

I.C.A. 631.4 specifically provides that any person may be represented by
an

attorney in small claims court.

There are no provisions which limit the right to be represented. Thus,

the parties in a district court proceeding (small claims and otherwise)
have a

right to be represented by counsel. The right to be represented by
counsel is

also afforded by the due process clause of the Iowa Constitution
(Article I,

Section 9).

C. Opportunity for the tenant to refute the evidence presented by the

PHA, including the right to confront and cross-examine witnesses

(24 CFR Section 966.53(c)(3))

I.R.C.P. Rule 191 establishes the procedure to be followed in the course

of trial proceedings in the regular Iowa district courts (not including
small

claims court). Rule 191 states:

After the jury is sworn, the trial shall proceed in the following

order:

\(a\) The party having the burden of proof on the whole action may

briefly state his claim, and by what evidence he expects to

prove it;

\(b\) The other party may similarly state his defense and

evidence;

\(c\) The first above party must then produce his evidence, to be

followed by that of the adverse party;

\(d\) The parties will be confined to rebutting evidence, unless

the court in furtherance of justice, permits them to offer

evidence in their original case;

\(e\) But one counsel on each side shall examine the same

witness, unless otherwise permitted by the court

Rule 191 gives the defendant an opportunity to present any defenses and
to

refute evidence presented by the plaintiff.

For a forcible detainer action in small claims court, I.C.A. 631.11(1)

provides that a small claims hearing shall be simple and informal and
shall be

conducted by the court itself, without regard to technicalities of
procedure.

I.C.A. 631.11(2) provides that the \"court shall swear the parties and
their

witnesses, and examine them in such a way as to bring out the truth.\"
The

parties may participate either personally or by an attorney. This
procedure

provides the opportunity for refutation of the landlord\'s case.

For a forcible detainer action, either in regular district court or in

small claims court, each party or the party\'s counsel has the right to
cross-

examine witnesses. Pond v. Anderson, 241 Iowa 1038, 44 N.W.2d 372, 376

(1950).

The right to refute evidence presented by the plaintiff is guaranteed by

the due process clause of the Iowa Constitution (Article I, Section 9).
Thus,

Iowa law guarantees a defendant the opportunity to refute the
plaintiff\'s

evidence and to confront and cross-examine witnesses.

D. Opportunity to present any affirmative legal or equitable defense

which the tenant may have (24 CFR Section 966.53(c)(3))

In a forcible detainer action in the regular district court (excluding

small claims court), I.R.C.P. Rule 72 provides that the defendant is
required

to file an answer which \"may contain as many defenses, legal or
equitable, as

the pleader may claim.\" There are no limits on the defenses which may
be

raised by the defendant in the district court forcible detainer
proceeding.

For a forcible detainer action in small claims court, I.C.A. 631.5

provides that a \"defendant may appear in person or by an attorney, and
by the

denial of a claim a defendant does not waive any defenses.\" The statute
does

not limit the right of a tenant to raise any available defense in this

proceeding.

For an unlawful detainer action in the regular district or small claims

proceeding, the Iowa law permits a defendant to raise any available
defenses

to the PHA\'s claim for possession, whether the defense is equitable or
legal

in character.

E. A decision on the merits (24 CFR Section 966.53(c)(4))

Iowa law requires a decision on the merits. The court is required to

examine the issues, whether of law or fact, and to make a finding on the

merits. Specifically, I.R.C.P. Rule 179 states:

The court trying an issue of fact without a jury, whether by

equitable or ordinary proceedings, shall find the facts in

writing, separately stating its conclusions of law; and direct an

appropriate judgment . . .

In addition, I.R.C.P. Rule 219 defines the term \"judgment\" to mean
\"every

final adjudication of any of the rights of the parties in an action.\"

I.C.A. 631.11(4) provides that a judgment shall be rendered, based upon

applicable law and upon a preponderance of the evidence.

A defendant in a action of forcible detainer in the Iowa district courts

is entitled to a decision on the merits. A decision on the merits is
also

required by the due process clause of the Iowa Constitution (Article I,

Section 9).

V. Conclusion

Iowa law governing a forcible detainer action in the district court

requires that the tenant have the opportunity for a pre-eviction hearing
in

court which provides the basic elements of due process as defined in 24
CFR

Section 966.53(c) of the HUD regulations.

By virtue of this due process determination under section 6(k) of the

U.S. Housing Act of 1937, a PHA in Iowa may evict a public housing
tenant

pursuant to an action for forcible detainer in the district courts
(either by

a proceeding in the regular district court pursuant to I.C.A. 648 or by
a

proceeding in the small claims court pursuant to I.C.A. 631), for any
criminal

activity that threatens the health, safety, or right to peaceful
enjoyment of

the premises of other tenants or employees of the PHA, or any
drug-related

criminal activity on or near the premises. The PHA is not required to
first

afford the tenant the opportunity for an administrative hearing on the

eviction.