IN THE SUPREME COURT OF IOWA

No. 14–0820

Filed May 6, 2016

Amended July 26, 2016

ELYSE DE STEFANO,

Appellant,

vs.

APTS. DOWNTOWN, INC.,

Appellee.

Appeal from the Iowa District Court for Johnson County, Nancy A. 

Baumgartner, Judge.

A tenant appeals and a landlord cross-appeals a district court 

ruling affirming in part and reversing in part a small claims court 

decision in a residential landlord–tenant dispute. AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED.

Christopher S. Warnock and Christine E. Boyer of Iowa Tenants’ 

Project, Iowa City, for appellant.

Robert M. Hogg and James W. Affeldt of Elderkin & Pirnie, P.L.C., 

Cedar Rapids, and C. Joseph Holland, Iowa City, for appellee.
2

APPEL, Justice.

This case is a landlord–tenant dispute that was initially tried as a 

small claims matter. The case presents a preliminary question of first 

impression, namely, whether an award of attorneys’ fees should be 

considered as part of the “amount in controversy” for purposes of 

determining the jurisdiction of the small claims court. If there is subject 

matter jurisdiction, the case includes several important issues under the 

Iowa Uniform Residential Landlord and Tenant Act (IURLTA), including 

(1) whether a landlord may enter into a contract with a tenant that 

requires the tenant to assume the cost of making repairs necessary to 

maintain the premises in a fit and habitable condition, (2) whether a 

landlord can refuse to approve a sublease based upon the refusal of the 

tenant to assume the cost of maintaining the premises in a fit and 

habitable condition, (3) whether a landlord may automatically deduct a 

fee for carpet cleaning at the conclusion of the lease term, and 

(4) whether statutory punitive damages are available for willful violation 

of the IURLTA in this case.

The landlord rented a four-bedroom home to four students in the 

college community of Iowa City. An exterior door and door lock to the 

premises were damaged due to third-party vandalism, requiring repair in 

order to maintain a fit and habitable premises. When the landlord was 

informed of the damaged door, the landlord repaired it but billed the 

tenants for the cost. The tenants refused to pay. When the tenants 

subsequently sought to sublease the apartment for two summer months, 

the landlord refused to approve the sublease on the ground that the 

tenants had failed to pay for the repairs and the penalties assessed for 

nonpayment. The tenants still refused to pay. As a result, the landlord 
3

refused to approve the sublease, and the premises was vacant for the last 

two months of the lease term.

At the conclusion of the lease term, the landlord then withheld the 

tenants’ rental deposit. The landlord withheld the rental deposit by 

asserting that (1) the tenants owed the landlord for the cost of repairing 

the damaged door, (2) the tenants incurred penalties under the lease for 

failing to timely pay for the damaged door, (3) the tenants were 

automatically obligated to pay the landlord for the cost of cleaning the 

carpet upon their surrender of the premises at the end of the lease term 

regardless of the condition of the carpet, and (4) the tenants owed the 

landlord various other relatively minor fees and costs of no relevance to 

this appeal.

One of the tenants, Elyse De Stefano, sued in small claims court, 

claiming that the landlord improperly withheld the rental deposit. The 

magistrate held for the tenant on most issues and awarded damages of 

$4720. The magistrate did not award attorneys’ fees to De Stefano 

because no attorney fee affidavits were filed. The landlord appealed to 

district court.

On appeal, the district court upheld some but not all of the 

magistrate’s decision. The district court concluded that under the terms 

of the lease, the landlord could charge the tenant for the replacement of 

the exterior door that had been vandalized by a person or persons 

unknown. The district court also found the landlord properly refused to 

allow the proposed sublease in light of the tenant’s refusal to pay for the 

exterior door. As a result, the tenant was liable to the landlord for rent 

during the two summer months when the premises was vacant. The 

district court found, however, that the landlord’s automatic deduction 

from the rental deposit for carpet cleaning violated the IURLTA and that 
4

certain late fees imposed by the landlord were improper. In the end, the 

district court awarded De Stefano $651.54 for the balance of the deposit 

improperly withheld and $200 in statutory punitive damages.

After trial, the attorneys for De Stefano sought fees under the 

terms of the IURLTA and submitted two separate fee affidavits supporting 

the fee claims. The district court awarded $1160 in attorneys’ fees, the 

sum claimed in a fee affidavit submitted by attorney Christine Boyer. 

The district court declined to award attorneys’ fees claimed in a fee 

affidavit submitted by attorney Christopher Warnock for $5466.

Both parties appealed, and we granted discretionary review. For 

the reasons that follow, we affirm in part and reverse in part the decision 

of the district court on the tenant’s appeal. We affirm in part and reverse 

in part the district court’s ruling on the landlord’s cross-appeal. We 

reverse and remand the case to the district court.

I. Background Facts and Proceedings.

In July 2010, four University of Iowa students—Elyse De Stefano, 

Hillary Block, Meghan Crotty, and Jennifer Connelly—rented a fourbedroom home in Iowa City from Apts. Downtown, Inc., (Apartments 

Downtown) under a written lease agreement. The period of the lease was 

from July 31, 2010, to July 26, 2011. The collective rent was $1635 per 

month, and the tenants paid a rental deposit of one month’s rent.

The preprinted lease contained seventy tightly-spaced paragraphs 

featuring many subparts and considerable detail. In paragraph 30 the 

lease provided, “Tenants agree to pay for all damages to the apartment 

windows, screens, and doors, including exterior unit doors (including 

random acts of vandalism).” The lease also provided in paragraph 33, 

“Unless the Landlord is negligent, Tenants are responsible for the cost of 

all damages/repairs to windows, screens, doors, carpet, and walls, 
5

regardless of whether such damage is caused by residents, guests or 

others.” Additionally, the lease contained a $452–$690 estimated cost 

for the repair or replacement of a prehung entry door.

The lease further provided that Iowa City Maintenance would 

perform all repairs “unless written authorization is secured from [the] 

Landlord.” It stated that Iowa City Maintenance charges $70 per hour 

during regular business hours and $90 per hour during nights and 

weekends, with a minimum of one hour per service call. Iowa City 

Maintenance is an alter ego of Apartments Downtown.

Furthermore, the lease included an automatic charge for carpet 

cleaning at the conclusion of the lease term. Specifically, the lease stated 

as follows:

The carpets throughout the building are professionally 

cleaned each time apartments turn over occupancy. Tenants 

agree to a charge starting at $95 (efficiency) not to exceed 

$225 (6+ bedrooms) being deducted from the deposit for 

professional cleaning at the expiration of the Lease.

The four student tenants, including De Stefano, took possession 

and paid the regular rent on a monthly basis for the duration of the 

lease, including for the months of June and July, 2011 after failing to 

receive Apartments Downtown’s approval for a sublease.

On August 25, 2011, the student tenant whose forwarding address 

had been provided to the landlord received a “Security Deposit Statement 

2011”1 from Apartments Downtown detailing the following charges to the 

tenants’ rental account:

Carpet Cleaning: $ 191.00

Cleaning Charges: $ 280.00

1This opinion follows Iowa Code section 562A.12(3) in referring to this as a 

“rental deposit,” but we consider any reference to a “security deposit” to be 

synonymous. 

 
6

Past Due Rent & Fees on Acct: $1,308.45

Lawn Clean Up: $ 60.00

Screens (Kitchen, BR 2): $ 150.00

Blinds (BR 2, 4): $ 99.00

Removal & Disposal of Tenants Items

(Bed mattress in front lawn): $ 50.00

Total Deductions (-) $2,138.45

 Total Due: $ (503.45)

The past-due rent and fees in the amount of $1308.45 consisted of 

charges of $210 for lawn care in June 2011; $598.46, the total cost for a 

replacement exterior door; $150 of late fees for failure to timely pay for 

the replacement door; and $349.99, the cost of replacing a refrigerator 

gasket and two broken screens found during a June 2011 maintenance 

inspection. The statement instructed the tenants to pay the $503.45 due 

on the account within thirty days.

The door replacement charge and the subsequent late fees 

stemmed from a burglary that occurred at De Stefano’s residence in 

October 2010. De Stefano and the other tenants filed a police report 

with the Iowa City Police Department. The report stated that the 

burglary had left the exterior doorframe damaged and the door lock 

broken.2 Apartments Downtown was called to repair the door on 

October 11. It arranged for Iowa City Maintenance, its in-house 

maintenance group, to replace the kicked-in door, and the charges were 

billed to De Stefano and her roommates. The total cost of the repair and 

replacement was $598.46, which included $318.46 for the replacement 

door and $280 for four hours of labor. Upon receipt of this charge, one 

of De Stefano’s cotenants sent a letter dated November 2 to Apartments 

Downtown, contesting the charge and advising that the damage was not 

2The front door was split for a length of approximately twelve inches around the 

latch and deadbolt, and the frame was damaged as a result of being “kicked in” during 

a burglary. This damage rendered the front door of the house unlockable.

 
7

caused by any of the tenants and the police investigation was ongoing. 

The student tenant, in a letter apparently written with the advice of 

counsel, referenced paragraph 30 of the lease agreement which stated: 

“Tenants agree to pay all damages to the apartment windows, screens, 

and doors, including exterior unit doors (including random acts of 

vandalism).” The tenant said she believed this lease provision to be 

unconscionable and thus unenforceable by a court.

Apartments Downtown responded on November 17,

By signing the lease agreement you agree to pay for all 

damages to the apartment windows, screens, and doors, 

including exterior unit doors, including random acts of 

vandalism. If . . . the door was broken down during a 

burglary, the destruction of the door is considered vandalism 

. . . . Even though the door was damaged during the break 

in, and not by a guest of the tenants, it still falls under the 

basis o[f] a visitor, whether they were a known guest or 

not. . . . [I]f the police investigation results in the finding of 

the guilty party that was responsible for the damage, then at 

that time we would be more than happy to charge said 

person(s) for the damage. Until then however, the damage 

incurred to the property fall[s] under the responsibility of the 

leased tenants. At this time you currently still have an 

outstanding balance of 598.46 on your account, if this would 

happen to still be current when December[’]s rent comes 

due, it will accumulate the standard $40.00 late charge.

On December 2, De Stefano emailed Apartments Downtown and 

indicated that on the advice of counsel the tenants would not be paying 

for the door and that if Apartments Downtown held back their deposit 

they would take legal action. Apartments Downtown, apparently 

believing the email to be a request that the $598.46 be taken from the 

tenants’ damage deposit at the end of the rental term, responded by 

email and referred De Stefano to a provision in the lease agreement 

stating that charges needed to be paid immediately or else late fees 

would accumulate. The email stated, 
8

[I]f you do not pay this bill, a $40 late charge will be applied 

to your rental account balance, which from now until the 

end of you[r] lease term would amount to an additional 

$320.00 in addition to the door balance.

In May 2011, De Stefano and the other tenants sought to sublet 

their apartment for the summer months. They located individuals 

interested in subleasing their rental property and contacted Apartments 

Downtown per the lease agreement, which stated, “[T]enants shall not 

sublet the dwelling unit . . . without the written consent of Landlord.” 

The lease also provided, however, “Only apartments whose rental 

accounts are in good standing may sublease. All rent/fees on the 

account must be paid before Landlord consents to a sublease.” Thus, 

Apartments Downtown refused to consent to any sublease because the 

tenants’ rental account carried an unpaid balance consisting of the 

charges for the replacement door and subsequent late fees for 

nonpayment. De Stefano and the other tenants were not able to sublet 

their rental property. 

On June 22, Apartments Downtown entered the tenants’ rental 

property without proper notice to conduct an annual maintenance tour. 

Iowa City Maintenance employees repaired two bent window screens at a 

cost of $150 and replaced a torn refrigerator gasket at a cost of $129.99. 

Apartments Downtown added the total charge of $349.99 to the tenants’ 

rental account, and it eventually became part of the “Past Due Rent and 

Fees.”

A month later, De Stefano and the other tenants received an email 

from Apartments Downtown containing move-out and inspection 

information. The email also told the tenants, in bolded and capital 

letters, “Tenants Only Need to Vacuum Carpet!” Below, it stated, “As 

agreed to in the lease’s addendum there will be a charge of $95-$225 
9

deducted from the tenant’s deposit to pay for professional carpet cleaning 

at the expiration of the lease.” On July 26, Apartments Downtown 

performed a checkout inspection at the residence. After the inspection, 

the company arranged for carpet cleaning to be performed by a local 

company for a cost of $191.

On August 25, Apartments Downtown sent out its statement 

disclosing the amounts withheld from the rental deposit and the balance 

still owed. De Stefano responded with an email asking for the return of 

the deposit and characterizing the landlord’s charges against the account 

as illegal and unreasonable. Apartments Downtown countered with a 

letter dated September 8, asserting that the deductions from the rental 

deposit complied with Iowa Code chapter 562A, which authorizes 

deductions from a rental deposit either for a tenant’s default in payment 

of rent or to restore a unit to the condition it had been in at the 

commencement of the tenancy. The letter provided a reason for each 

charge and declined to remove any of the charges. The landlord’s letter 

further requested that the tenants pay the balance on the account by 

September 25 to avoid future collections action. On September 19, the 

Apartments Downtown Department of Collections and Litigation sent 

De Stefano and the other former tenants individual letters demanding 

payment of the claimed $503.45 balance due on the rental account.

On October 4, De Stefano brought a small claims action against 

Apartments Downtown.3 De Stefano’s notice requested $5000 from 

Apartments Downtown as well as attorneys’ fees and court costs. On 

October 28, De Stefano’s case was stayed and consolidated with a 

3De Stefano’s standing to assert claims on behalf of herself and her three 

cotenants is not disputed.

 
10

different case pending against Apartments Downtown in the district 

court. The district court denied De Stefano’s motion for partial summary 

judgment in the consolidated case on May 17, 2012. De Stefano then 

moved to transfer the case back to the small claims division, and the 

district court granted the motion on June 8.

On July 18, the parties appeared for trial in small claims court. 

De Stefano presented a number of claims, including (1) that the 

automatic carpet-cleaning charges in the lease were illegal, (2) that the 

charges for replacement of a door that had been wrecked during the 

burglary of the tenants’ residence were unlawful, (3) that the tenants lost 

two months’ rent because the landlord wrongfully refused to consent to 

their proposed sublease, (4) that punitive damages should be awarded 

under the IURLTA for the willful withholding of the rental deposit, and 

(5) that reasonable attorneys’ fees should be awarded under the IURLTA.

The small claims court found that the carpet-cleaning provision in 

the lease was unenforceable, the lease provisions making tenants 

responsible for the damage to the door caused by a burglary were 

unconscionable and thus unenforceable, and punitive damages were 

warranted. The court applied various other deductions to the rental 

deposit not relevant to this appeal. The court awarded De Stefano $4520 

in damages and $200 in statutory punitive damages for a total of $4720.

After the trial, De Stefano’s cocounsels Warnock and Boyer filed 

two separate affidavits requesting attorney fees in the amounts of $5466 

and $1160 be added to the judgment nunc pro tunc. Apartments 

Downtown resisted on the ground that the attorney fee applications were 

untimely and would result in damages in excess of the jurisdictional 

limits of the small claims court. The court declined to rule on the 
11

applications because by then Apartments Downtown had appealed to the 

Johnson County District Court.

On appeal, the district court reversed in part and affirmed in part. 

The district court entered a number of holdings relevant to this appeal. 

First, the district court held that Apartments Downtown and its tenants 

“were free to reach an agreement holding the tenants financially 

responsible for repair of a door damaged by an alleged criminal act” and 

reversed that aspect of the small claims court’s ruling. Second, “because 

the lease provision regarding the tenant’s financial responsibility for 

damage to exterior doors . . . was not prohibited,” the district court found 

that Apartments Downtown was free to refuse to consent to the proposed 

sublease due to tenants’ failure to pay the door charge, and the court 

accordingly reversed on that issue as well. Third, the district court held 

that the automatic carpet-cleaning provision in its lease was “an illegal 

provision because it does not require the landlord to prove any specific 

damage to the carpet” and affirmed the small claims court on that 

ground. Fourth, the district court agreed with the small claims court 

that late fees for nonpayment of rent were not supported by actual 

evidence. Fifth, the district court concluded that “there was a bad faith 

retention of the security deposit based on, at a minimum, [Apartments 

Downtown]’s inclusion of the carpet-cleaning fee in the lease.” The court 

additionally found that Apartments Downtown retained the rental 

deposit in bad faith by assessing late fees for nonpayment of the cost of 

the replacement door, when “late fees were only permitted for nonpayment of rent.”

The court’s holdings reduced the award to De Stefano to $851.54. 

This figure was calculated by taking the $1635 deposit and reducing it 

by $385 (the deductions authorized by the small claims court and not 
12

challenged by De Stefano on appeal) and $598.46 (the charge for the 

door replacement), then adding on $200 in punitive damages. Finally, 

the district court awarded De Stefano $1160 in attorney fees because 

Iowa Code section 562A.12(8) allows for the award of reasonable attorney 

fees to the prevailing party. We granted both parties’ requests for 

discretionary review and retained the appeal.

II. Standard of Review.

“In a discretionary review of a small claims decision, the nature of 

the case determines the standard of review.” GE Money Bank v. Morales, 

773 N.W.2d 533, 536 (Iowa 2009). Our review of small claims actions 

tried at law is for correction of errors at law. Midwest Check Cashing, 

Inc. v. Richey, 728 N.W.2d 396, 399 (Iowa 2007). “A review of statutory 

construction is at law.” GE Money Bank, 773 N.W.2d at 536. The 

district court’s factual findings, however, are binding upon this court if 

supported by substantial evidence. Id.; Barnhill v. Iowa Dist. Ct., 765 

N.W.2d 267, 272 (Iowa 2009). We review the district court’s award of 

attorneys’ fees for abuse of discretion. GreatAmerica Leasing Corp. v. 

Cool Comfort Air Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 732 

(Iowa 2005).

III. Preliminary Small Claims Court Jurisdictional Analysis.

A. Introduction. Apartments Downtown challenges the subject 

matter jurisdiction of the small claims court. See Tigges v. City of Ames, 

356 N.W.2d 503, 511 (Iowa 1984) (noting that “[s]ubject matter 

jurisdiction should be considered before the court looks at other matters 

involved in the case”). “Subject matter jurisdiction is the power ‘of a 

court to hear and determine cases of the general class to which the 

proceedings in question belong, not merely the particular case then 

occupying the court’s attention.’ ” Klinge v. Bentien, 725 N.W.2d 13, 15 
13

(Iowa 2006) (quoting Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 

1989)). Jurisdiction over the subject matter of a claim must be conferred 

by a constitutional or statutory grant. Id. “The parties themselves 

cannot confer subject matter jurisdiction on the court.” Schott v. Schott, 

744 N.W.2d 85, 87 (Iowa 2008). 

At the outset, it is important to precisely define the legal issue 

behind the subject matter jurisdictional challenge. The question is not a 

broad, freewheeling, hermeneutic issue of the meaning of “amount in 

controversy” or “cost.” Instead, the issue is narrow. The issue is 

whether attorneys’ fees that may be awarded pursuant to the IURLTA 

should be considered in determining whether the jurisdictional 

limitations of small claims proceedings are exceeded when the issue is 

not expressly addressed in the statutes.

B. Relevant Statutory Provisions. We begin our jurisdictional 

analysis with an overview of relevant statutory provisions. The small 

claims court has jurisdiction over those “civil action[s] for a money 

judgment where the amount in controversy is . . . five thousand dollars 

or less . . . exclusive of interest and costs.” Iowa Code §§ 631.1(1), .2(1) 

(2011).4 The legislature created this scheme for small claims because it 

“thought it was in the public interest to provide a simpler, easier, and 

less expensive procedure than was afforded in district court under the 

Rules of Civil Procedure.” Barnes Beauty Coll. v. McCoy, 279 N.W.2d 

258, 259 (Iowa 1979); see Iowa Legis. Ct. Study Comm’n, Report to 62d 

Iowa General Assembly pt. I, at 4 (1967) (proposing to the legislature a 

new court division that would hear claims using a “simple, expeditious, 

and inexpensive” procedure).

4All Code references are to 2011 unless otherwise indicated.

 
14

In small claims court, no pleadings are required—a claimant can 

begin an action by filling out a simple form. Iowa Code §§ 631.3, .7(1); 

Barnes, 279 N.W.2d at 259. Jurisdiction over the case is determined at 

the time set for the hearing of the small claim. Iowa Code § 631.9. If at 

any time a claim is joined that is not a small claim, the small claims 

court may order the entire action tried by regular procedure. Id.

§ 631.8(4). In the alternative, the court may separate the claims and try 

the small claims itself while transferring the others to the district court. 

Id.; see also Wilson v. Iowa Dist. Ct., 297 N.W.2d 223, 225 (Iowa 1980) 

(noting that the small claims court properly ordered a case transferred 

when “the amount in controversy on one side of the case exceeded [the 

jurisdictional limit]” and the claims arose out of the same transaction).

Iowa Code chapter 631 does not provide a statutory definition of 

“amount in controversy” or “costs.” There is a section in the chapter 

stating that certain “fees and costs” shall be collected in advance by the 

clerk of the district court. See Iowa Code § 631.6. The statute also 

provides that these items “shall be assessed as costs.” Id. The items are

fees for filings, fees for service of notice, postage, and fees for personal 

service. Id. The Code section simply lists items collected in advance by 

the clerk which are later assessed as costs under the statute. Attorneys’ 

fees are not costs incurred in advance and later assessed in litigation, 

and as a result, it is not surprising that attorneys’ fees are not mentioned 

in this Code provision.

The IURLTA has a number of provisions related to attorneys’ fees. 

Iowa Code section 562A.12(8) provides that “[t]he court may, in any

action on a rental agreement, award reasonable attorney fees to the 

prevailing party.” Iowa Code section 562A.11 also has an attorneys’ fee 

provision. “If a landlord willfully uses a rental agreement containing 
15

provisions known by the landlord to be prohibited, a tenant may recover 

actual damages sustained by the tenant and not more than three 

months’ periodic rent and reasonable attorney fees.” Id. § 562A.11(2) 

(emphasis added). This section distinguishes between actual damages 

and attorneys’ fees that may be awarded by the district court.

C. Positions of the Parties. Apartments Downtown did not 

challenge subject matter jurisdiction in either the small claims court or 

on appeal in the district court.5 It now maintains, however, that the 

judgment below must be vacated because the amount in controversy 

exceeded small claims jurisdiction as soon as De Stefano filed attorney

fee applications specifically requesting more than $280 on top of her 

$4720 damage award.

De Stefano sees things differently. She contends that attorneys’ 

fees do not count against the $5000 jurisdictional limit in small claims 

court. De Stefano has two theories for why attorneys’ fees do not count 

against the jurisdictional limit. First, she urges the IURLTA specifically 

authorizes attorneys’ fees. The IURLTA provides, “The court may, in any 

action on a rental agreement, award reasonable attorney fees to the 

prevailing party.” Id. § 562A.12(8). She looks to the IURLTA for support

for her attorneys’ fee argument.

Alternatively, however, De Stefano argues that the small claims 

statute should be interpreted as excluding attorneys’ fees in determining 

the amount in controversy. According to Iowa Code section 631.1(1), a 

small claims action is a “civil action for money judgment where the 

5Apartments Downtown did oppose De Stefano’s attorney fee applications on the 

ground that they would result in an award in excess of small claims jurisdiction, but 

prior to this appeal never asserted that the small claims court (or the district court on 

appeal) had actually lost jurisdiction.

 
16

amount in controversy is . . . five thousand dollars or less . . . exclusive 

of interest and costs.” De Stefano maintains the exclusion for “costs”

applies here because attorneys’ fees should be considered costs under 

the statute. De Stefano further argues that, as a practical matter, judges 

are reluctant to award attorneys’ fees in landlord–tenant actions, and in 

any case such fees would rarely be awarded in amounts which would 

cause the total to exceed $5000 except in cases of an egregious violation 

of the IURLTA.

D. Caselaw from Other Jurisdictions. As indicated above, the 

precise issue in this case is whether attorneys’ fees awarded pursuant to 

the IURLTA should be considered for purposes of determining the 

jurisdiction of small claims courts when the underlying statutes do not 

expressly address the issue. There are a number of cases from other 

states which address the question.

A leading case supporting the view that attorneys’ fees should not 

be considered in determining the jurisdiction of New Jersey’s version of 

small claims court is Lettenmaier v. Lube Connection, Inc., 741 A.2d 591 

(N.J. 1999). In that case, the question was whether an award of 

attorneys’ fees under a New Jersey consumer fraud statute should be 

considered as part of the amount in controversy in New Jersey’s version 

of small claims court. Id. at 591. The New Jersey Supreme Court, 

among other things, pointed to the underlying provision of the consumer 

fraud statute, which grouped attorneys’ fees with “filing fees and costs.” 

Id. at 594. In addition, the Lettenmaier court noted that “a majority of 

the out-of-state cases which have addressed the issue have held that 

counsel fees, not otherwise characterized, are to be considered as costs.” 

Id. at 595.
17

Interestingly, the Lettenmaier court cited two Iowa cases as 

standing for the proposition that attorneys’ fees cannot be considered in 

determining whether jurisdictional limits have been exceeded because 

attorneys’ fees are “separate and distinct” events that cannot be assessed 

before liability is established. Id. (citing Ayala v. Ctr. Line, Inc., 415 

N.W.2d 603 (Iowa 1987); Maday v. Elview-Stewart Sys., Co., 324 N.W.2d 

467 (Iowa 1982)). The Lettenmaier court distinguished federal diversity 

cases where the question is whether attorneys’ fees should be considered 

in order to reach the jurisdictional minimum. Id. The court noted that 

the analogy to federal diversity cases “loses its persuasive power entirely

when it is applied to circumscribe a litigant’s access to a court that is 

especially suited to his or her claims.” Id. at 596.

The Lettenmaier court also considered practical implications of a 

contrary rule. The court noted that plaintiffs seeking a quick and 

relatively inexpensive resolution in small claims courts could face 

defense tactics of piling on attorneys’ fees to exceed the jurisdictional 

maximum. Id. More importantly, the court feared that including 

attorneys’ fees as part of the amount in controversy would put plaintiffs 

in the position of foregoing counsel fees in order to maintain the 

expedited process. Id.

A case from the Ohio Court of Appeals also supports leaving 

attorneys’ fees out of the “amount in controversy” for jurisdiction—Drake 

v. Menczer, 425 N.E.2d 961 (Ohio Ct. App. 1980). This case involved a 

small claim brought under the Ohio Landlords and Tenants Act (OLTA), 

Ohio Revised Code chapter 5321. Id. at 962. Like Lettenmaier, the 

Drake court noted that “[t]raditionally, when a statute authorizes the 

award of attorneys’ fees, it does so by allowing the fees to be taxed as 

costs.” Drake, 425 N.E.2d at 963. The Drake court also focused on the 
18

language of the OLTA, noting that its fee-shifting provisions provided for 

“actual damages together with reasonable attorneys’ fees.” Id. (quoting 

Ohio Rev. Code Ann. § 5321.02). The Ohio court concluded that the 

legislature intended damages and attorneys’ fees to be separate items,

and attorneys’ fees should be taxed as costs. Id. at 964; see also Bittner 

v. Tri-Cty. Toyota, Inc., 598 N.E.2d 925, 928 (Ohio Mun. Ct. 1992) 

(attorneys’ fees arising from consumer protection statute are considered 

costs and not damages for purposes of jurisdictional limitation in 

municipal courts).

In Arabian v. Kearns, the Oregon appellate court considered 

whether attorneys’ fees should be considered in determining the amount 

in controversy under an Oregon small claims statute. 667 P.2d 1038, 

1039 (Or. Ct. App. 1983) (en banc). The Oregon court concluded that 

attorneys’ fees should not be included in determining the jurisdictional 

limit. Id. at 1040. Among other reasons, the Oregon court stressed that 

attorneys’ fees are not a matter of proof during trial, but are instead 

determined after trial and are procedurally treated like costs and 

disbursements. Id. This reasoning is close to that in Lettenmaier, where 

the New Jersey Supreme Court relied on Iowa cases making that point.

A Wisconsin appellate court considered the issue in Reusch v.

Roob, 610 N.W.2d 168 (Wis. Ct. App. 2000). In that case, the Wisconsin 

appellate court considered whether statutory attorneys’ fees awarded 

under a Wisconsin consumer protection statute should be included for 

purposes of determining the jurisdiction of a small claims court. Id. at 

178. The Reusch court concluded that statutory attorneys’ fees should 

not be included. Id. at 179. The court reasoned that the attorneys’ fees 

awarded pursuant to consumer protection statutes were not designed to 
19

compensate victims for damages but instead to compensate attorneys for 

their services. Id.

The Reusch case was cited with approval by the Wisconsin 

Supreme Court in Roehl Transport, Inc. v. Liberty Mutual Insurance Co.,

784 N.W.2d 542 (Wis. 2010). In a footnote, the Wisconsin Supreme 

Court, citing prior precedent, noted the “subtle but significant difference 

between attorney[s’] fees attributable to bringing a lawsuit and those 

recoverable as damages resulting from a tort.” Id. at 572 n.65. The 

court emphasized that attorneys’ fees attributable to bringing a lawsuit 

are “intended to compensate the attorneys, whereas [damages are]

intended to compensate the victims.” Id.

There are cases that seem to stand for the contrary. For example, 

Texas courts have generally held that in determining the amount in 

controversy for jurisdictional purposes, actual damages, exemplary 

damages, and attorneys’ fees are included. See Villarreal v. Elizondo, 831 

S.W.2d 474, 476 (Tex. App. 1992). This rule is qualified, however, by the 

notion that a plaintiff may seek additional damages exceeding the 

jurisdictional limits if they have occurred as a result of the passage of 

time. Id. Similarly, in Pinnacle Properties v. Saulka, an Indiana appellate 

court held that attorneys’ fees should be included in determining the 

amount sought for purposes of determining the jurisdiction of a small 

claims court. 693 N.E.2d 101, 106 (Ind. Ct. App. 1998). The Indiana 

court noted that the small claims statute did not explicitly distinguish 

between attorneys’ fees and damages. Id.

E. Iowa Caselaw. There is no Iowa caselaw directly on point on 

the narrow jurisdictional question presented here. There are two cases, 

however, that were cited by Lettenmaier that may have bearing on the 
20

question of whether attorneys’ fees should be considered in determining 

the amount in controversy for purposes of jurisdictional limitations.

In Maday, we considered a question of attorneys’ fees in the 

context of Iowa Code chapter 91A, the Wage Payment Act. 324 N.W.2d at

468. The precise question posed was whether attorneys’ fees should be 

determined by a judge or jury in proceedings brought under the statute. 

Id. at 469. In Maday, we sided with authorities treating statutory 

allowance of attorneys’ fees as costs logically assessable by the court. Id. 

at 469–70.

We reached a similar result in Ayala. There, the question was 

whether a judge or jury should determine an award of attorneys’ fees 

under the Iowa Civil Rights Act. Ayala, 415 N.W.2d at 604. We observed 

that “an award of attorney fees is more in the nature of an equitable 

remedy than an award of actual damages.” Id. at 605. We further noted 

the assessment of attorneys’ fees, like the assessment of court costs,

cannot be done until liability is established. Id. at 606. We therefore, as 

in Maday, determined the question of attorneys’ fees should be handled 

in the same manner as costs, namely, decided by the court after trial of 

the underlying matter. Id.

We have also considered whether costs includes attorneys’ fees in 

significantly different contexts than what we face in this case. For 

instance, in Weaver Construction Co. v. Heitland, we held that the term 

“costs” in Iowa Code chapter 677 could not be interpreted as including 

attorneys’ fees. 348 N.W.2d 230, 233 (Iowa 1984). Similarly, in Turner v. 

Zip Motors, we held that the use of the term “costs” in Iowa Code section 

625.1 should not be interpreted to include attorneys’ fees. 245 Iowa 

1091, 1100, 65 N.W.2d 427, 432 (1954). These cases, however, deal with 

the question of whether the term “cost” or “costs” is sufficient to create a 
21

substantive fee-shifting provision contrary to the ordinary American rule 

that each party bears the expense of fees charged by their attorneys. 

These cases simply do not address the question of whether a reference to 

costs in a jurisdictional statute includes attorneys’ fees when there is a 

separate statutory authority to shift the costs of attorneys’ fees to the 

other party.

F. Analysis. In interpreting section 631.1, we begin with the 

statutory language. See In re Marriage of Thatcher, 864 N.W.2d 533, 538

(Iowa 2015). “Words or phrases that are undefined in the statute or for 

which there is no established legal meaning are given their common, 

ordinary meaning in the context within which they are used.” Bank of 

Am., N.A. v. Schulte, 843 N.W.2d 876, 880 (Iowa 2014). If the statute is 

unambiguous, we will look no further than the language chosen by the 

legislature. In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). “Under the 

pretext of construction, we may not extend a statute, expand a statute, 

or change its meaning.” Bank of Am., 843 N.W.2d at 880.

Yet, we have cautioned that courts “should be circumspect 

regarding narrow claims of plain meaning and must strive to make sense 

of [a statute] as a whole.” Rolfe State Bank v. Gunderson, 794 N.W.2d 

561, 564 (Iowa 2011). The meaning of language is often not self-evident. 

“Whether or not the words of a statute are clear is itself not always 

clear.” Barbee v. United States, 392 F.2d 532, 535 n.4 (5th Cir. 1968). 

When a statute is ambiguous, we may look to a wide variety of intrinsic

and extrinsic aids to discover the meaning of the legislative language. 

State v. McIver, 858 N.W.2d 699, 704 (Iowa 2015). We recognize, 

however, that use of various resources and interpretive aids do not 

mechanically and automatically produce inescapable answers. See 2A 
22

Norman J. Singer & Shambie Singer, Statutes and Statutory Construction,

§ 45.13, 137–38 (7th ed. rev. 2014).

We have little trouble noting that the meaning of the terms 

“amount in controversy” and “costs” for purposes of determining the 

limits of small claims jurisdiction under Iowa Code section 631.1 cannot 

be resolved by simply declaring a plain meaning. Both terms are opentextured and can include and exclude a wide variety of items, depending 

on context. The ambiguity of the statutory terms is demonstrated by 

legislative usage. In some contexts, the legislature has expressly said 

that costs includes attorneys’ fees. For example, Iowa Code section 

6B.33 authorizes payment of all costs in appeals of condemnation 

proceedings “including reasonable attorney fees.”6 In other contexts, the 

6See, e.g., Iowa Code § 207.14(5) (2015) (allowing court to assess “all reasonable 

costs and expenses, including reasonable attorney fees” in administrative proceeding 

regarding coal mining inspection); id. § 421B.10 (awarding “costs of suit, including 

reasonable attorney fees” to plaintiffs for established violations of cigarette sales 

statutes); id. § 455B.111(4) (authorizing award of costs including attorney fees to any 

party in action for natural resources statute violations); id. § 501A.801(4)(h) (allowing 

court to order payment of “party’s reasonable costs, including reasonable attorney fees” 

in suits over the inspection of business records); id. § 504.1604(3) (requiring any court 

ordering nonprofit corporation to allow the inspection of its records by a member to also 

“pay the member’s costs, including reasonable attorney fees”); id. § 507C.46(2) (stating 

that any applicant for assets in insurer liquidation “shall pay the costs and expenses of 

the liquidator in resisting the application including a reasonable attorney fee”); id. 

§ 533C.705 (assessing costs including reasonable attorney fees against persons who 

violate the Uniform Money Services Act); id. § 535B.13(3) (allowing court to order that 

unlicensed banker “pay the costs for the investigation and prosecution of the 

enforcement action including attorney fees”); id. § 552A.5(3) (stating that persons 

injured by violations of statutory prescriptions for sale of club memberships may 

recover “costs, including reasonable attorney fees”); id. § 553.12(4) (allowing injured 

person or state to “[r]ecover the necessary costs of bringing suit, including a reasonable 

attorney fee” under Iowa competition law); id. § 598.24 (levying costs, including attorney 

fees against a party in contempt in a divorce proceeding); id. § 600B.25 (allowing court 

to award prevailing party in a paternity suit “the reasonable costs of suit, including but 

not limited to reasonable attorney fees”); id. §§ 633.551(5), .673 (assessing the costs, 

including attorney fees, of a guardianship against ward or ward’s estate); id. 

§ 633A.4507 (permitting court to award costs including reasonable attorney fees to any 

party in a proceeding on the administration of a trust); id. § 654.17(2) (allowing 

mortgagee to charge mortgagor “the costs, including reasonable attorney fees, of 

 
23

legislature had declared that the court may tax “as costs” a reasonable 

attorney fee. For instance, in Iowa Code section 625.22 the general 

assembly provided that “[w]hen judgment is recovered upon a written 

contract containing an agreement to pay an attorney fee, the court shall 

allow and tax as part of the costs a reasonable attorney fee to be 

determined by the court.”7 This legislative language plainly suggests 

that, at least in some contexts, the simple term “costs” is broad enough 

to include attorney fees.

Yet, in other statutes, the legislature has referred to attorneys’ fees 

and costs as separate and distinct items.8 In addition, although the 

foreclosure and rescission”); id. § 714.16(11) (entitling attorney general to recover costs 

of court action, including reasonable attorneys’ fees, in consumer fraud action); id. 

§ 714.16B(1)(b)(3) (providing for recovery of attorney fees as part of reasonable costs of 

bringing a civil action for identity theft); id. § 715A.2A(3)(b) (assessing against any 

employer that accommodates fraud the costs of an enforcement action including 

attorney fees).

7See, e.g., Iowa Code § 202B.401(2)(b) (2015) (awarding attorney fees that are 

“taxed as part of the costs of the action” to parties prevailing in actions for agricultural 

processing violations); id. § 202C.3(1) (taxing attorney fees as part of the costs of a legal 

action for breaching a sales agreement); id. § 257B.33 (awarding compensation for

attorney fees to be taxed as costs in actions by school boards to recover debts); id. 

§ 327D.16 (allowing court to tax as “costs in the case,” the costs of suit and a 

reasonable attorney fee); id. § 479.46(6) (prescribing that pipeline company pay all costs 

of appealing an assessment of installation damages “including reasonable attorney fees 

to be taxed by the court”); id. § 479B.30(6) (same for construction damages); id. 

§ 502.509(5) (awarding attorney fees taxed as court costs to clients maintaining actions 

against unregistered investment advisers); id. § 573.21 (allowing court to tax, as costs, 

attorney fees for parties establishing a claim for labor or materials on public 

improvements); id. § 717A.3(2)(b) (awarding “reasonable attorney fees, which shall be 

taxed as part of the costs of the action,” to prevailing plaintiffs in actions for damage to 

crops); Iowa R. Civ. P. 1.1225 (“On partition of real estate, but not of personal property, 

the court shall fix, and tax as costs, a fee in favor of plaintiff’s attorney . . . .”).

8See, e.g., Iowa Code § 21.6(3)(b) (2015) (requiring a court to “order the payment 

of all costs and reasonable attorney fees” to a person prevailing on an open meetings 

claim); id. § 22.10(3)(c) (providing that a court shall “order the payment of all costs and 

reasonable attorney fees” to a person prevailing on an open records claim); id. 

§ 80A.16A(2) (authorizing costs and reasonable attorney fees as part of recovery for 

persons injured by actions of bail enforcement agents); id. § 91A.8 (making an employer 

that intentionally fails to pay wages liable for “court costs and any attorney’s fees 

incurred in recovering the unpaid wages”); id. §§ 216.15(9)(a)(8), .17A(6)(11) (allowing 

_________________________
24

context is different, we have not interpreted the word “costs” when used 

alone in a statute to be inclusive of attorney fees. See Weaver, 348 

plaintiff in discriminatory housing or wage action to recover reasonable attorney’s fees 

and court costs); id. § 217.31 (providing that any entity that disseminates confidential 

records is liable for “court costs, expenses, and reasonable attorney fees”); id. 

§ 252B.13A(1) (stating that child “support payments do not include attorney fees [or] 

court costs”); id. § 252K.313(3) (“The tribunal shall order the payment of costs and 

reasonable attorney’s fees if it determines that a hearing was requested primarily for 

delay.”); id. § 322G.8(3) (allowing consumer to recover pecuniary loss, “reasonable 

attorney’s fees, and costs” in action over defective motor vehicle); id. § 327C.21 

(permitting court to “render judgment for costs, and attorney’s fees for counsel 

representing the state” in actions against railroads for violations of duties owed to the 

public); id. § 502.509(2)(c), (3)(c) (permitting award of costs and reasonable attorney fees 

in securities actions); id. § 523D.7(1) (permitting recovery of “court costs and reasonable 

attorney fees” from provider of continuing care for violations of chapter 523D); id. 

§ 523H.13 (creating liability for both costs and reasonable attorney fees for violators of 

chapter regarding franchises); id. §§ 535.8(4)(d), .11(8) (allowing for recovery of both 

costs and attorney fees from lender or creditor who collects an unlawful charge); id. 

§ 535A.6(2) (permitting court to award actual damages, court costs, and attorney fees if 

financial institution committed a “red-lining” violation); id. § 537.3621 (authorizing a 

consumer’s recovery of attorney fees and court costs); id. § 551A.8 (authorizing awards 

of reasonable attorney fees and court costs for violations of disclosure in business 

opportunity promotions); id. § 572.32(1) (permitting prevailing plaintiff to recover 

reasonable attorney fees in action to enforce mechanic’s lien); id. § 598B.312(1) 

(awarding to prevailing parties seeking child support costs and attorney fees along with 

other expenses of proceedings); id. § 633.713(4) (stating that court may assess expenses 

including attorney fees and court costs against party engaging in unjustifiable conduct 

regarding guardianship proceeding); id. § 649.5 (permitting court to “assess, in addition 

to the ordinary costs of court, an attorney fee” to a successful plaintiff in an action to 

quiet a title); id. § 663A.1(6)(a) (listing as part of the damages recoverable by a 

wrongfully imprisoned person “court costs imposed and paid and any reasonable 

attorney’s fees”); id. § 685.3(6)(b) (enabling recovery of “litigation costs and reasonable 

attorney fees” by certain whistleblowers); id. § 692.6 (making entities disseminating 

criminal history information in violation of chapter liable for “court costs, expenses, and 

reasonable attorney fees”); id. § 714B.8(2) (providing for recovery of “[c]osts and 

reasonable attorney fees” when a person suffers pecuniary loss because of a violation of 

the prize promotion law); id. § 714D.6(1)(c) (allowing for recovery of “[c]osts and 

reasonable attorney fees” in an action by a consumer against a telecommunications 

provider for fraud); id. § 714G.11 (permitting attorney general to seek “a monetary 

award for civil penalties, attorney fees, and costs” for consumer credit violations); id. 

§ 729.6(8) (awarding as part of relief to an aggrieved party under genetic testing laws 

attorney fees and court costs); id. § 729A.5 (providing that hate crime victims may bring 

an action for “reasonable attorney fees[] and costs”); id. § 809A.12(7) (requiring agency 

bringing forfeiture action to pay reasonable attorney fees and costs); id. § 910.2(1) 

(listing “court costs” and the “court-appointed attorney fees” as separate charges to be 

payable by any convicted offender).

_________________________
25

N.W.2d at 233 (“We do not agree, however, that the word ‘costs’ [in 

chapter 677] should be so liberally stretched as to include attorney 

fees.”); Turner, 245 Iowa at 1100, 65 N.W.2d at 432 (“[Section 625.1] has 

always been held to mean the ordinary costs, not including attorney 

fees.”).

We should be careful not to extrapolate too much from the 

foregoing statutes and authorities. They do suggest, however, that the 

threshold test of ambiguity has been crossed and that we may resort to 

interpretive tools to guide us in determining the narrow issue presented 

here.9

In order to aid us in determining the meaning of costs in the small 

claims statute where a substantive statute authorizes the payment of 

attorneys’ fees, we turn to historical precursors of our current small 

claims statute. Before the passage of the Unified Trial Court Act in 

1972—1972 Iowa Acts chapter 1124—Iowa had justice-of-the-peace 

courts with limited amount-in-controversy jurisdiction. See Iowa Code 

§§ 602.1–.56 (1971). The legislature created the small claims division of 

the Iowa district courts to replace the justice-of-the-peace courts and the 

other inferior courts that had previously resolved small civil disputes. 

Suzanne E. Elwell & Christopher D. Carlson, The Iowa Small Claims 

Court: An Empirical Analysis, 75 Iowa L. Rev. 433, 453–60 (1990)

[hereinafter Elwell]. Under the former system, we viewed contractual 

9Prior to 1980, contractual attorneys’ fees were a percentage of the recovery. 

See Iowa Code § 625.22 (1979) (authorizing court to tax as costs an attorney fee set as a 

percentage of the amount recovered). Thereafter, courts were authorized to award 

reasonable attorneys’ fees. See Iowa Code § 625.22 (1981) (authorizing court to award a 

reasonable attorney fee). One could argue that once courts were given authority to 

determine reasonable attorneys’ fees, it no longer became possible to tax them in the 

same mechanical manner that costs were taxed. Yet the “tax” terminology remained in 

the statute.

 
26

attorneys’ fees as equivalent to costs for amount-in-controversy purposes

and thus excluded them in computing the jurisdictional limit:

One question certified and argued seems properly to arise 

from the record, and is of a determinative character; and 

that is, as to whether, in determining the jurisdiction of the 

justice, where a question is made as to the amount in

controversy, an attorney’s fee provided for in the note is to be 

considered a part of the amount in controversy, or treated as 

costs. 

The statute expressly declares that it shall be treated 

as a part of the costs. Section 2 of act above cited. The 

amount in controversy, then, was not more than $100, and 

the justice had jurisdiction.

Spiesberger Bros. v. Thomas, 59 Iowa 606, 609, 13 N.W. 745, 746 (1882). 

Fifty years later, we reiterated this point:

[W]e know of no case holding that in determining the 

question of jurisdiction, the prayer for costs is taken into 

consideration in determining the amount in controversy. 

The right to recover costs is a statutory one, and an incident 

of the litigation. It is equally true that contracts may provide 

for attorney’s fees, and courts have recognized the right to so 

provide; but the statute provides they should be taxed as a 

part of the costs. The amount thereof is fixed by statute, 

and therefore is not a matter of controversy between the 

parties. They are in the same category as any other 

statutory costs incident to litigation, and cannot be taken 

into consideration in determining the amount in controversy 

between the parties. In other words, the claim of $50 for 

attorney’s fees made by the plaintiff is simply a claim for 

costs, the same as for any other costs incident to the 

litigation.

Johnson v. Boren, 215 Iowa 453, 455–56, 245 N.W. 711, 712–13 (1932).

Given that the 1972 legislation did not explicitly address how 

attorneys’ fees were to be handled for jurisdictional amount purposes, 

apart from stating that costs should be excluded, we think it is fair to 

infer the general assembly intended a continuation of prior law. See

Iowa Farm Bureau Fed’n v. Envtl. Prot. Comm’n, 850 N.W.2d 403, 434 

(Iowa 2014) (“The legislature is presumed to know the state of the law, 
27

including case law, at the time it enacts a statute.” (quoting Welch v. 

Iowa Dep’t of Transp., 801 N.W.2d 590, 600 (Iowa 2011))). The cost 

exclusion for jurisdictional amount purposes therefore would extend to 

contractual attorneys’ fees.

Of course, this does not directly answer the question of how 

noncontractual attorneys’ fees should be treated. The existence of “a 

written contract containing an agreement to pay an attorney’s fee” upon 

which a judgment has been recovered is a clear condition precedent to 

the application of section 625.22. See, e.g., Bankers Trust Co. v. Woltz, 

326 N.W.2d 274, 277–78 & n.4 (Iowa 1982) (applying section 625.22 to a 

surety contract). So, section 625.22 does not apply here.

We have previously stated, however, that statutory, noncontractual 

attorneys’ fees are likewise taxed and treated as costs:

When a statute provides for attorney fees but is silent as to 

their ascertainment, we find the better rule to be that 

“[w]here attorneys’ fees are allowed to the successful party, 

they are in the nature of costs and are taxable and treated as 

such.”

Maday, 324 N.W.2d at 469 (quoting 20 Am. Jur. 2d Cost § 72 (1965)); 

see also Ayala, 415 N.W.2d at 605. As indicated above, Maday and 

Ayala were cited in Lettenmaier in support of its holding that attorneys’ 

fees are not included within the amount in controversy for purposes of 

determining the jurisdictional limits of small claims courts.

As noted above, prior to the 1972 Unified Court Act, we had made 

clear that because contractual fees were taxed as costs, they were 

therefore excluded from the amount-in-controversy calculation. Since 

other attorneys’ fees authorized by statute are likewise taxed as costs, it 

seems incongruous they would be treated differently—i.e., deemed part of 

the amount in controversy. This would go against the holdings of 
28

Spiesberger and Johnson that amounts taxed as costs do not count 

against the jurisdictional limit. Johnson, 215 Iowa at 455–56, 245 N.W. 

at 712–13; Spiesberger, 59 Iowa at 608, 13 N.W. at 746. Treating such 

fees as costs for section 631.1 purposes avoids a seemingly odd situation 

where attorneys’ fees sometimes would and sometimes would not count 

toward the amount in controversy, depending on the basis for those fees.

Further, we think the reasoning contained in the out-of-state 

caselaw declining to include attorneys’ fees awarded pursuant to statute 

in determining the limits of small claims jurisdiction is persuasive. As 

pointed out in Reusch, the purpose of statutory fees is not to compensate 

plaintiffs for their damages, but to compensate attorneys. 610 N.W.2d at 

179. This reasoning suggests that an award of statutory attorneys’ fees 

should not be included for small claims jurisdictional purposes. See id.

As suggested in Lettenmaier and Arabian, the fact that statutory 

attorneys’ fees are ordinarily not determined by the fact finder, but are 

treated like other costs, indicates that when there is a statutory basis for 

awarding attorneys’ fees they should be treated as costs and not as an 

amount in controversy under a small claims statute. See Lettenmaier,

741 A.2d at 596; Arabian, 667 P.2d at 1040. Further, the Lettenmaier

court looked to the underlying fee-shifting statute, noting that attorneys’ 

fees were grouped with filing fees and costs. Lettenmaier, 741 A.2d at 

594; see also Drake, 425 N.E.2d at 963–64 (looking to language of 

underlying fee-shifting statute to determine if attorneys’ fees are to be 

included in determining small claims jurisdiction). Here, the underlying 

statute clearly distinguishes between damages and attorney fees. Iowa 

Code § 562A.12(3), (7), (8).

We acknowledge that the treatment of costs under the federal 

diversity statute seems inconsistent with our view at first blush. Under 
29

the federal diversity statute, federal courts have jurisdiction over 

disputes between citizens of different states when the amount in 

controversy exceeds $75,000, “exclusive of interest and costs.” 28 U.S.C. 

§ 1332 (2012). Contractual and statutory attorneys’ fees generally count 

against the jurisdictional limit, see 14AA Charles A. Wright et al., Federal 

Practice and Procedure § 3712, at 806–12 (2011), and our legislature 

employed the same phrase—“exclusive of interest and costs”—in the 

Unified Court Act in 1972. 1972 Iowa Acts ch. 1124, § 60 (codified at 

Iowa Code § 631.1 (1973)). Yet, as noted in Lettenmaier, including

attorneys’ fees against the jurisdictional limit in the context of the federal 

diversity statute is designed to expand access to the federal court for 

substantial cases, not contract access to small claims court where 

matters are efficiently and expeditiously resolved. 741 A.2d at 596.

We recognize that small claims court is meant to provide a simple 

and streamlined judicial process with limited dollar amounts at stake. 

See Barnes, 279 N.W.2d at 259. Attorneys’ fees, unlike traditional court 

costs and interest, can have a substantial impact on financial risks 

posed by the litigation. If attorneys’ fees are not included in calculating 

the small claims jurisdictional limits, fee shifting can have the effect of 

significantly raising defendants’ exposure. 

There can be little question, however, that landlord–tenant 

disputes are ordinarily the kind of dispute that should be resolved in 

small claims court. Tenants are generally quite mobile, and drawn-out 

proceedings could impair the ability of tenants to vindicate their 

statutory rights. Small claims court will often be the most preferable 

forum.
30

Yet, without a lawyer, it will often be very difficult for tenants to 

litigate these small claims.10 This case is a good example of the kind of 

case that simply could not realistically have been prosecuted by student 

tenants on a pro se basis. We want to encourage the use of small claims 

procedure for landlord–tenant disputes, not put the preferred forum at 

risk simply because tenants are represented by competent and zealous 

counsel.

For all the reasons stated above, we are persuaded that the 

exclusion of costs in Iowa Code section 631.1 applies to amounts “taxed 

as costs,” i.e., attorneys’ fees when separately authorized. Accordingly, 

the small claims court had jurisdiction to hear this case. Our opinion is 

limited to section 631.1 and should not be taken as expressing a view 

that when the term “costs” is used in other contexts, it encompasses 

attorneys’ fees.

IV. Duties of Landlord and Tenant Regarding Damaged 

Exterior Door. 

A. Development of the Implied Warranty of Fitness and 

Habitability. 

1. Historical overview. The law related to landlord–tenant 

relationships has evolved over time. For centuries, landlord–tenant law 

was governed by property law. See Russell E. Lovell, The Iowa Uniform 

Residential Landlord and Tenant Act and the Iowa Mobile Home Parks 

Residential Landlord and Tenant Act, 31 Drake L. Rev. 253, 256–57 

(1981) [hereinafter Lovell]; see also Mease v. Fox, 200 N.W.2d 791, 793 

10According to one source, landlords are represented by counsel in twenty-five 

percent of the small claims cases. See Elwell, 75 Iowa L. Rev. at 471. Consultation 

with attorneys appears to occur between thirty-four percent for plaintiffs and thirty-one 

percent for defendants in tenant claims. Id. at 490, Table J.

 
31

(Iowa 1972). The right to possess land for agricultural purposes was 

thought to be at the heart of the transaction, and as a result, the 

landlord had no obligation to repair structures located on the property. 

See Mease, 200 N.W.2d at 793. Further, the common law recognized an 

independent doctrine under which the tenant’s obligation to pay rent was 

independent of the landlord’s obligation to the tenant. Donald E. 

Campbell, Forty (Plus) Years After the Revolution: Observations on the 

Implied Warranty of Habitability, 35 U. Ark. Little Rock L. Rev. 793, 796–

97 (2013) [hereinafter Campbell].

With industrialization and urbanization, however, common law 

courts began to take a second look at the traditional no-repair doctrine. 

See id. at 797. In the modern age, many landlord–tenant relationships 

involved residences in which the core interest of the tenant was 

appropriate living space, not sprawling land for crop production. See id.

at 799. While the yeoman farmer could generally maintain land for 

agricultural purposes as well as the landlord, modern city dwellers 

lacked the ability to make necessary repairs of residential property. See

Lovell, 31 Drake L. Rev. at 259. Further, many courts noted the 

disparity of bargaining power between landlords and tenants. See, e.g., 

Knight v. Hallsthammar, 623 P.2d 268, 271 (Cal. 1981) (en banc); Park 

W. Mgmt. Corp. v. Mitchell, 391 N.E.2d 1288, 1292 (N.Y. 1979).

As a result of these changed social and economic circumstances, 

courts began to change the prevailing legal regime surrounding the 

landlord–tenant relationship. Many courts departed from the traditional 

no-repair rule through implying what was labeled a warranty of fitness 

and habitability in a residential lease. By the early 1970s, a majority of 

state courts, including Iowa, provided common law protection for 

residential tenants to ensure habitability of the premises. See, e.g.,
32

Mease, 200 N.W.2d at 796 (citing cases). These cases abandoned the 

doctrine of independency and imposed mutual obligations whereby the 

landlord’s right to receive rent was inseparable from the landlord’s 

obligation to provide a fit and habitable premises.

2. Eclectic analytic underpinnings of doctrine. The analytic bases 

for the implied warranty of habitability were eclectic. Some courts drew 

an analogy to contract law in general and the implied warranties under 

the Uniform Commercial Code (UCC) in particular. See, e.g., Javins v. 

First Nat’l Realty Corp., 428 F.2d 1071, 1075 (D.C. Cir. 1970); Park W.,

391 N.E.2d at 1292; Mary Ann Glendon, The Transformation of American 

Landlord–Tenant Law, 23 B.C. L. Rev. 503, 547 (1982) [hereinafter 

Glendon]. This conceptualization had the merit of freeing landlord–

tenant law from the law of property, but as some have observed, it is a 

“strained one” and has a “small resemblance” to implied warranties in 

the sale of goods. Campbell, 35 U. Ark. Little Rock L. Rev. at 829–30, 

830 n.208; Glendon, 23 B.C. L. Rev. at 546–47.

Indeed, the common law implied warranty of habitability has a 

number of features materially different from contractual theory and the 

UCC. Unlike under the UCC, the common law warranty of implied 

habitability ordinarily applies even when the defects are obvious to the 

tenant at the time of “sale” and even though the tenant reasonably could 

have discovered the defect by inspection. See Glendon, 23 B.C. L. Rev. 

at 547 & n.285. The UCC allows “as is” transactions, while the majority 

of courts refuse to allow “as is” transactions in a residential lease as

contrary to the implied warranty of habitability. See id. at 547 

& nn.286–88. The buyer under the UCC has the choice of rejecting the 

goods or keeping them and suing for damages, while under the implied 

warranty of habitability the tenant may stay in possession and still not 
33

pay rent. See id. at 547 & nn.289–90. In addition, the landlord–tenant 

relationship is an ongoing relationship. Thus, the analogy comparing the 

implied warranty of habitability with contract law or the UCC has limited 

utility and may well be “misnamed.” See Edward H. Rabin, The 

Revolution in Residential Landlord–Tenant Law: Causes and 

Consequences, 69 Cornell L. Rev. 517, 521 (1984) [hereinafter Rabin]. 

See generally Campbell, 35 U. Ark. Little Rock L. Rev. at 829–31; 

Glendon, 23 B.C. L. Rev. at 547–48.

Further, the common law warranty of habitability is implied in law, 

not in fact. Kline v. Burns, 276 A.2d 248, 252 (N.H. 1971). The doctrine 

just does not rest on the unstated expectations of the parties, or even 

one of them, but rather on public interests in health and safety. See 

Campbell, 35 U. Ark. Little Rock L. Rev. at 829–31; Glendon, 23 B.C. L. 

Rev. at 547–48. As a doctrine, implied in law is more in the domain of 

public law than private ordering. See Berman & Sons, Inc. v. Jefferson, 

396 N.E.2d 981, 986 n.11 (Mass. 1979) (noting implied warranty caselaw 

removing the landlord’s duty from the “realm of private ordering”); see

also Glendon, 23 B.C. L. Rev. at 505.

Aside from theory, a review of the cases demonstrates the public 

law aspects of the common law implied warranty of habitability. One of 

the important underlying impetuses of the development in the common 

law of the implied warranty was the public policy embraced in the 

enactment of housing codes by state and local authorities to protect 

tenants and ensure a safe and sanitary housing stock.11 See Javins, 428 

11Although the legislative policy behind housing codes—promoting safe and 

healthy housing—is clear, the housing codes were an ineffective means of advancing the 

policy. Code enforcement has often been lax if not inconsistent, and the sanctions for 

violations have been characterized as comparatively mild. Joel R. Levine, The Warranty 

of Habitability, 2 Conn. L. Rev. 61, 73 (1969). According to one commentator, 

 
34

F.2d at 1080 (finding housing code requires warranty of habitability be 

implied); Boston Housing Auth. v. Hemingway, 293 N.E.2d 831, 840 

(Mass. 1973) (emphasizing role of housing codes in stimulating common 

law development); Pines v. Perssion, 111 N.W.2d 409, 412–13 (Wis. 1961) 

(following old rule of caveat emptor is “inconsistent with the current 

legislative policy regarding housing standards”). See generally Glendon, 

23 B.C. L. Rev. at 505. As a result, it is not surprising that the leading 

cases establishing an implied warranty of habitability repeatedly justify 

the rule by reference to the public interest. See Foisy v. Wyman, 515 

P.2d 160, 164 (Wash. 1973) (en banc) (“We believe this type of bargaining 

by the landlord with the tenant is contrary to public policy and the 

purpose of the doctrine of [the] implied warranty of habitability.”). See 

generally Lawrence Berger, The New Residential Tenancy Law—Are 

Landlords Public Utilities?, 60 Neb. L. Rev. 707 (1981); Roger A. 

Cunningham, The New Implied and Statutory Warranties of Habitability in 

Residential Leases: From Contract to Status, 16 Urb. L. Ann. 3 (1979) 

[hereinafter Cunningham].

3. Remedies by tenants for breaches of implied warranty of 

habitability. Once courts determined that an implied warranty of 

habitability existed as a matter of substantive law, questions of remedy 

inevitably arose. One strand of cases involved the ability of tenants to 

make necessary repairs and then recover the reasonable cost of labor 

and materials from the landlord. For instance, in Pines, the court held 

“[h]ousing code enforcement has been notoriously unsuccessful.” Id. Common law 

courts adopted the implied warrant of habitability to advance the policies behind 

housing codes by offering a potentially more effective remedy. Creating a private right 

of action for violation of public wrongs has solid legal provenance. See Altz v. Lieberson, 

134 N.E. 703, 704 (N.Y. 1922) (Cardozo, J.); Ezra Ripley Thayer, Public Wrong and 

Private Action, 27 Harv. L. Rev. 317, 320 (1914).

_________________________
35

that tenants were entitled to the return of rental deposits plus the costs 

of labor for making such repairs. 111 N.W.2d at 413. Similarly, in 

Marini v. Ireland, the court approved a recovery when the tenant repaired 

a cracked toilet and associated water leak. 265 A.2d 526, 528, 535 (N.J. 

1970). In Jackson v. Rivera, a case that is somewhat similar to the facts 

of this dispute, the court considered a similar tenant repair remedy, but 

found, as a matter of fact, that the tenant failed to prove that she paid a 

certain sum for a new front door and had been required to pay for a 

window not broken by her. 318 N.Y.S.2d 7, 11 (Civ. Ct. 1971). The 

notion the tenant may, under some circumstances, perform the repairs 

needed to bring housing into compliance with the implied warranty is 

well-established in the caselaw.

4. Development of Iowa common law implied warranty of 

habitability. In Fetters v. City of Des Moines, we observed that “the rule 

of caveat emptor ordinarily applies as between lessor and lessee.” 260 

Iowa 490, 496, 149 N.W.2d 815, 819 (1967), overruled in part by Mease, 

200 N.W.2d at 794, 796. Five years later, however, in Mease, we 

embarked on a new course notwithstanding the landlord’s stentorian 

proclamation that a departure from precedent would “wreck our way of 

life.” 200 N.W.2d at 797. Iowa then embraced a common law implied 

warranty of fitness and habitability in residential leases in Mease. Id. at 

796. 

In holding that every lease implied a warranty of habitability, we 

relied on the seminal case of Javins. Id. at 795.12 We noted that the 

12Javins has been compared to Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 

25 L. Ed. 2d 287 (1970), in its importance to protecting low-income people. See David 

A. Super, The Rise and Fall of the Implied Warranty of Habitability, 99 Cal. L. Rev. 389, 

391 (2011) [hereinafter Super].

 
36

Javins court emphasized, among other things, that many tenants lack 

the ability to repair structures and that “[l]ow and middle income tenants 

. . . would be unable to obtain any financing for major repairs since they 

have no long-term interest in the property.” Id. (quoting Javins, 428 F.2d 

at 1078–79). We favorably cited a passage in Pines for the propositions 

that public policies manifested in housing standards and the need and 

desirability for adequate housing were “too important to be rebuffed by 

[the] obnoxious legal cliché, caveat emptor.” Id. at 794 (quoting Pines, 

111 N.W.2d at 413). We further recognized that because of inequality of 

bargaining power, “the potential lessee is in no position to dicker about 

even the most basic necessities.” Id. at 794–95.

We thus recognized in Mease a common law warranty of 

habitability and declared that under the implied warranty the leased 

premises “shall remain during the entire term in such condition to 

maintain the habitability of the dwelling.” Id. at 796. While we 

recognized that we had upheld the doctrine of caveat emptor in prior 

cases, we noted that “this court reject[s] application of stare decisis to 

avoid perpetuating decisional law made obsolete by time.” Id. at 797–98; 

see Haynes v. Presbyterian Hosp. Ass’n, 241 Iowa 1269, 45 N.W.2d 151 

(1950). The Mease opinion is written with confidence, and even verve, on 

the question of whether to adopt a common law implied warranty of 

habitability in Iowa.

5. The issue of waiver of the implied warranty of habitability. The 

Mease court, however, did not expressly decide whether the implied 

warranty of fitness and habitability could be waived or overridden by 

agreement of the parties. The Mease court did provide a list of factors 

pertinent in “testing the effect and materiality of the alleged breach.” Id.

at 797. It is not explicit in Mease whether the factors were germane to 
37

breach or to remedy. According to Mease, factors pertinent in “testing 

the effect and materiality” of an alleged breach include “whether tenant 

voluntarily, knowingly and intelligently waived the defects, or is estopped 

to raise the question of the breach.” Id.

The precise meaning of this factor, and its relationship to other 

factors listed by the court, is not elaborated upon in Mease or developed 

in subsequent caselaw. The “testing the effect and materiality” language, 

however, suggests that there must be a present specific defect before the 

question of waiver or estoppel may be considered. At least one court has 

ruled that common law warranty of habitability cannot be waived yet still 

had a list of factors to determine the materiality of the alleged breach. 

See Hemingway, 293 N.E.2d at 843–44.

In any event, the majority of courts in other jurisdictions that have 

taken the issue head on have held that the common law implied 

warranty of habitability cannot generally be waived. These nonwavier 

courts emphasized the public policy purposes of the implied warranty 

and the inability of most tenants to effectively bargain with their 

landlords. For example, in the leading case of Javins, the court stressed 

that “the old no-repair rule cannot coexist with the obligations imposed 

on the landlord by a typical modern housing code.” 428 F.2d at 1076–

77. Following the rationale of Javins, the court in George Washington 

University v. Weintraub, held that public policy considerations, including 

inequality of bargaining power and scarcity of housing, prohibited waiver 

by private agreement of the parties. 458 A.2d 43, 47 (D.C. Ct. App. 

1983). Similarly, in Green v. Superior Court, the California Supreme 

Court emphasized that “public policy requires that landlords generally 

not be permitted to use their superior bargaining power to negate the 

warranty of habitability rule.” 517 P.2d 1168, 1173 n.9 (Cal. 1974) (en 
38

banc). Other cases offer similar rationales for nonwaiver of the implied 

warranty of habitability. See Knight, 623 P.2d at 273 (stating the 

“reasons which imply the existence of the warranty of habitability . . . 

compel the conclusion” that the warranty cannot be waived); Fair v. 

Negley, 390 A.2d 240, 245 (Pa. Super. Ct. 1978) (emphasizing that 

“[w]ere we to permit waiver of the implied warranty by an express 

provision in the lease, it would be a rare lease in which the waiver would 

not appear”); Foisy, 515 P.2d at 164–65 (rejecting bargaining between 

landlord and disadvantaged tenant over habitability); Teller v. McCoy, 

253 S.E.2d 114, 130–31 (W. Va. 1978) (holding waivers of warranty are 

against public policy); see Shelby D. Green, Paradoxes, Parallels and 

Fictions: The Case for Landlord Tort Liability Under the Revised Uniform 

Residential Landlord-Tenant Act, 38 Hamline L. Rev. 407, 446 (2015).

There are, however, a few squishy cases which, like Mease, 

ambiguously suggest that whether a tenant had “waived the defect” 

might be a factor to be considered somewhere along the line in the 

analysis. See Kline, 276 A.2d at 252 (stating that “whether the tenant 

waived the defects” is a factor in “deciding if there has been a breach”); 

Berzito v. Gambino, 308 A.2d 17, 22 (N.J. 1973) (citing a laundry list of 

nonexhaustive factors for determining whether there “has been a breach 

of the covenant of habitability” by the lessor, including “[c]an the tenant 

be said to have waived the defect or be estopped to complain?”). Whether 

and under what conditions a waiver would outweigh the other factors is 

not explained. Further, the precise requirements for such a waiver, such 

as whether it must be supported by consideration independent of the 

rental agreement, whether it arises solely from after-the-fact settlement 

agreements, whether the defect is waived only when there is a failure of 

the tenant to give the landlord timely notice of the problem and a 
39

reasonable opportunity to repair, or whether there must be evidence of 

actual and balanced bargaining related to the waiver, is not explored in 

the cases.

It is possible, however, to partially reconcile the cases. The 

nonwaiver cases generally stand for the proposition that categorical 

waivers of the implied warranty of habitability prior to the actual damage 

that requires repair are barred. Thus, detailed anticipatory language in a 

form lease agreement waiving the implied warranty of habitability is

barred. Once a potential breach occurs, however, the parties may then 

separately negotiate for the repair, provided that any subsequent 

agreement is fairly bargained, is supported by consideration independent 

of the underlying lease, and resolves the underlying habitability problem.

The Restatement (Second) of Property: Landlord and Tenant, 

however, appears to have taken the view that the implied warranty of 

habitability was subject to negotiation between the landlord and tenant. 

The Restatement (Second) provides that “[e]xcept to the extent the parties 

to a lease validly agree otherwise,” a landlord breaches his or her duties 

if the residential premises is not suitable for residential use. 

Restatement (Second) of Prop.: Landlord & Tenant § 5.5(1), at 205 (1977 

& Supp. 2015) [hereinafter Restatement (Second)]; see also id. at § 5.6, at 

215.13 What constitutes a “valid agreement,” however, is not explored. 

See id. § 5.5(1), at 205. Further, Restatement (Second) section 5.3, 

comment c states, “The tenant as a matter of law is unable to waive any 

remedies available to him at the time of entry, if at the time of entry it 

13If the Restatement (Second) is viewed as generally permitting waivers of the 

implied warranty of habitability by contract in states that have recognized the common 

law implied warranty of habitability, it represents a minority position. If, however, the 

Restatement (Second) recognized that a valid contractual provision cannot be contrary 

to the public policy embraced in the implied warranty cases, it is on firmer ground. 

 
40

would be unsafe or unhealthy to use the leased property in the manner 

contemplated by the parties.” Id. § 5.3 cmt. c, at 190. Additionally, a 

Reporter’s Note states, “The rule of this section does not allow waiver of 

housing code violations [because of] public policy considerations.” Id. 

§ 5.3, reporter’s note 3; see also Cunningham, 16 Urb. L. Ann. at 96–97.

As with the caselaw, academic authorities come to varied 

conclusions regarding the waivability of the common law implied 

warranty of habitability. One authority notes that if the implied warranty 

of habitability read into leases could be waived by the landlord inserting 

exculpatory language into the same lease, very little would be 

accomplished. See Ted L. Hansen, Current Interest Areas of LandlordTenant Law in Iowa, 22 Drake L. Rev. 376, 388 (1973) (“[T]he same 

reasons that necessitate an implied warranty of habitability would also 

necessitate prohibition against waiver of that warranty.”).

Another leading authority noted that “[a]lthough one might be 

tempted to conclude that if the tenant read, understood, and signed the 

lease the repugnant clause should be enforced, this conclusion is 

erroneous.” Rabin, 69 Cornell L. Rev. at 582. Because of the market 

defects including heavy transaction and information costs and the 

practical absence of competition among landlords concerning such 

terms, courts should refuse to enforce such exculpatory clauses absent 

“truly effective bargaining.” Id. at 583.

B. Provisions of the Iowa Uniform Residential Landlord and 

Tenant Act. In 1972, the Uniform Law Commission promulgated the 

Uniform Residential Landlord and Tenant Act. Unif. Residential

Landlord & Tenant Act, 7B U.L.A. 289 (2001). In 1978, Iowa adopted its 

version of the Uniform Act. 1978 Iowa Acts ch. 1172 (codified at Iowa 

Code ch. 562A (1981)). As was noted by a leading contemporary 
41

commentator, the Iowa statute was a close facsimile of the URLTA. See

Lovell, 31 Drake L. Rev. at 255.

The IURLTA’s first substantive provision is a statement of purposes 

of the Act. Iowa Code § 562A.2. Noteworthy is Iowa Code section 

562A.2(2)(c), which describes one of the purposes as being “[t]o [e]nsure 

that the right to the receipt of rent is inseparable from the duty to 

maintain the premises.” Id. § 562A.2(2)(c). Thus, the statute emphasizes 

that the obligations of landlords are inextricably intertwined with the 

right to receive rent. See id. Further, the chapter is to be “liberally 

construed and applied” to promote this underlying purpose. Id.

§ 562A.2(1).

The IURLTA language regarding the duty of the landlord to 

maintain premises is similar to the URLTA. Iowa Code section 

562A.15(1) imposes six categories of duties on landlords, including the 

duty to “[m]ake all repairs and do whatever is necessary to put and keep 

the premises in a fit and habitable condition.” Id. § 562A.15(1)(b). With 

respect to two categories (landlord’s duty to provide trash services and to 

supply running water and heat), the landlord and tenant of a singlefamily residence may agree in writing to have the tenant perform the 

landlord’s duties. Id. § 562A.15(2). In addition, the landlord and tenant 

may enter into written agreements that the tenant perform “specified 

repairs, maintenance tasks, alterations, and remodeling, but only if the 

transaction is entered into in good faith.” Id.

The IURLTA also has a strong antiwaiver provision. Iowa Code 

section 562A.11(1)(a) provides that a lease provision in which a party 

“[a]grees to waive or to forgo rights or remedies,” id. § 562A.11(1)(a), 

under the Act are “prohibited,” id. § 562A.11(2). This provision ensures 
42

that heavily lawyered form leases cannot override the substantive 

provisions of the IURLTA.

C. Whether the Terms of the Lease Agreement Complies with 

the IURLTA. The relationship between the statutory duty of the 

landlord to “[m]ake all repairs and do whatever is necessary to put and 

keep the premises in a fit and habitable condition,” the statutory 

provision prohibiting waivers, and the statutory provision allowing a 

landlord and tenant to enter into written agreements that “the tenant 

perform . . . specified repairs,” provides the grist for an important issue 

in this appeal. See id. §§ 562A.11(1)(a), .15(1)(b), .15(2). It has been 

characterized as “[t]he most difficult area” in residential landlord–tenant 

law. Rabin, 69 Cornell L. Rev. at 582.

On the one hand, the landlord argues that the specified-repairs

provision recognizes the ability of the landlord and tenant to freely enter 

into agreements allocating the duties and responsibilities of the parties 

as in any arm’s-length contract. The landlord draws support from 

language in Mease suggesting that contractual provisions were a factor 

in determining the effect or materiality of the alleged breach. 200 N.W.2d 

at 797.

On the other hand, the tenant counters that if landlords may put 

contractual provisions in leases requiring tenants to assume what would 

otherwise be the responsibility of the landlord to make repairs to keep 

the premises fit and habitable, the substantive protection of the statutory 

duty of the landlord to provide and maintain a fit and habitable premise 

would be largely eviscerated. The tenant could end up with “the right to 

pay rent and precious little else.” Lovell, 31 Drake L. Rev. at 254 & n.1 

(quoting Julian H. Levi, The Legal Needs of the Poor: Problems Relating to 

Real Property 2 (1964)); see also Javins, 428 F.2d at 1080–81 
43

(emphasizing landlords have a continuing obligation during the lease 

term to maintain the premises in a fit and habitable condition); Green, 

517 P.2d at 1173 n.9 (“[P]ublic policy requires that landlords generally 

not be permitted to use their superior bargaining power to negate the 

warranty of habitability rule.”); Moity v. Guillory, 430 So. 2d 1243, 1245 

(La. Ct. App. 1983) (noting tenant signs one-sided agreement to make 

repairs when premises in poor condition).

The leading contemporary commentator on the Iowa Act took the 

latter position. Professor Lovell emphasized that the IURLTA prohibits 

waiver of rights. Lovell, 31 Drake L. Rev. at 290; see also Iowa Code 

§ 562A.11(1)(a). According to Professor Lovell,

The legislature has unequivocally spoken. The warranty of 

habitability and other rights afforded tenants under both 

Acts cannot be overcome by the inclusion of waiver clauses 

in a form lease. This legislation clearly overrides the vague 

language in Mease v. Fox which suggested that the warranty 

of habitability could be waived.

Lovell, 31 Drake L. Rev. at 290.

Professor Lovell’s interpretation is certainly plausible. While the 

implied warranty of habitability protects tenants substantially, it limits 

but does not eviscerate the contracting-out provision of Iowa Code 

section 562A.15(2). A landlord and tenant, for instance, might agree that 

a tenant perform specified repairs as a handy man, but the obligation to 

pay the costs remains with the landlord. Or, specific repairs could be 

limited to minor repairs that do not affect the landlord’s duty to provide a 

habitable premises. But is Professor Lovell’s contemporary interpretation 

the best approach to the Iowa statute?

We note that versions of other states’ URLTAs often avoid any 

ambiguity regarding the scope of any potential contractual waiver by the 

tenant. For instance, Minnesota law expressly provides that specified 
44

repairs do not include repairs necessary to keep “the premises and all 

common areas . . . fit for their use intended by the parties.” Minn. Stat.

§ 504B.161(1), (2) (2015). On the other hand, some states expressly 

authorize open-ended contractual opt-out provisions in unmistakable 

terms. For example, the Wyoming statute specifically states that “[a]ny 

duty or obligation in this article may be . . . modified by explicit written 

agreement signed by the parties.” Wyo. Stat. Ann. § 1-21-1202(d) (West, 

Westlaw current through 2015 Gen. Sess.). Similarly, Mississippi law 

provides that “the landlord and tenant may agree in writing that the 

tenant perform some or all of the landlord’s duties under this section, 

but only if the transaction is entered into in good faith.” Miss. Code Ann. 

§ 89-8-23(3) (West, Westlaw current through 2016 1st Extraordinary 

Sess.). The Iowa legislature did not take either approach.

Yet, when we read the Iowa statute in context, a substantial 

limitation on the ability of the parties to waive basic protections of the 

Iowa Act as suggested by Professor Lovell may make sense. The IURLTA 

generally imposes six affirmative statutory duties upon a landlord 

regarding the leased premises. Iowa Code § 562A.15(1). Specifically, the 

landlord is required to,

a. Comply with the requirements of applicable 

building and housing codes materially affecting health and 

safety.

b. Make all repairs and do whatever is necessary to 

put and keep the premises in a fit and habitable condition.

c. Keep all common areas of the premises in a clean 

and safe condition . . . .

d. Maintain in good and safe working order and 

condition all electrical, plumbing, sanitary, heating, 

ventilating, air-conditioning, and other facilities and 

appliances . . . .

e. Provide and maintain appropriate receptacles and 

conveniences . . . for the central collection and removal of 

ashes, garbage, rubbish, and other waste . . . .
45

f. Supply running water and reasonable amounts of 

hot water at all times and reasonable heat . . . .

Id.

The statute provides that the landlord and tenant may agree in 

writing that the tenant perform the landlord’s duties specified in (e) and 

(f) above. Id. § 562A.15(2). The statute further provides that the 

landlord and tenant may agree in writing to have the tenant “perform . . . 

specified repairs, maintenance tasks, alterations, and remodeling, but 

only if the transaction is entered into in good faith.” Id.

Under Apartments Downtown’s approach to the “specified repairs”

section, however, the landlord’s obligation to provide a fit and habitable 

premises under section 562A.15(1)(b) can be undermined by a stock 

laundry list of specified repairs. Under the approach of the landlord, the 

entire listing of statutory obligations related to the fitness of the 

premises—and not just the obligations under (e) and (f) above—may be 

contracted away. Further, a tenant could be liable for highly expensive 

repairs that occur at the end of the term of the lease even though the 

tenant did not cause the uninhabitable condition to arise.

Apartments Downtown’s sweeping approach is arguably 

inconsistent with what the legislature has declared is one of the main 

purposes of the IURLTA, namely, “[t]o [e]nsure that the right to the 

receipt of rent is inseparable from the duty to maintain the premises.” 

Id. § 562A.2(2)(c) (emphasis added). Indeed, the statement of purpose 

reflects the view that the common law doctrine of independency of 

landlord and tenant duties has been abandoned. And, the legislature 

has directed us that in our consideration of matters under the IURLTA, 

the statute should be “liberally construed and applied” to promote its 

purposes, certainly including ensuring that “the right to the receipt of 
46

rent is inseparable from the duty to maintain the premises.” Id.

§ 562A.2(1)–(2).

Under the landlord’s interpretation, however, the right to receipt of 

rent in the context of single-family dwellings can be severed from the 

duty to maintain the premises through a detailed and well-lawyered form

contract exhaustively listing specified repairs. If the landlord’s position 

in this case is followed, the statute ensures very little with respect to 

maintaining the premises and does not ensure the receipt of rent is 

inseparable from the duty to maintain the premises.

Indeed, under the freedom-of-contract approach, the duty to 

maintain the premises is quite separable. While the landlord’s duty to 

maintain a habitable premises has been characterized as critical and 

central to landlord–tenant law, it would be undermined under the 

landlord’s approach. See Campbell, 35 U. Ark. Little Rock L. Rev. at 807; 

see also Lovell, 31 Drake L. Rev. at 310; Richard L. Costella & 

Christopher S. Morris, West Virginia Landlord and Tenant Law: A 

Proposal for Legislative Reform, 100 W. Va. L. Rev. 389, 419 (1997).

Further, as noted in the caselaw regarding the common law 

implied warranty of habitability, the duty is rooted substantially in public 

policy. Comment to section 2.104(d) of the URLTA notes that 

“[s]tandards of habitability dealt with in this section are a matter of 

public police power rather than the contract of the parties or special 

landlord-tenant legislation.” Unif. Residential Landlord & Tenant Act

§ 2.104(d) cmt., 7B U.L.A. 326–28. The comment recognizes that 

interests beyond the parties are implicated by the implied warranty. 

Glendon, 23 B.C. L. Rev. at 553. This comment plainly cuts against 

shifting of the duty to the tenant to provide a fit and habitable premises 

in lease documents.
47

It thus could be argued that the legislature’s stated purpose that 

the rent paid by the tenant is inseparable from the landlord’s duty to 

provide a fit and habitable premises is best promoted by limiting, in the 

case of single-family dwellings, the ability of the landlord to shift its 

duties to the tenant by contract to subsections (e) and (f). Iowa Code 

§ 562A.15(1)(e)–(f), (2). We recognize the rule of construction that the 

“legislative intent is expressed by omission as well as inclusion, and the 

express mention of one thing implies the exclusion of others not so 

mentioned.” Kucera v. Baldazo, 745 N.W.2d 481, 487 (Iowa 2008) 

(quoting Meinders v. Dunkerton Cmty. Sch. Dist., 645 N.W.2d 632, 637 

(Iowa 2002)). Applying this rule of construction, the expression of 

contracting authority with respect to subsections (e) and (f) arguably 

implies the exclusion of contracting authority with respect to earlier 

listed obligations of the landlord. Then, looking to the relationship 

between associated words and phrases, see T & K Roofing Co. v. Iowa 

Dep’t of Educ., 593 N.W.2d 159, 163 (Iowa 1999), the term “specified 

repairs” could be interpreted to involve matters not affecting the 

landlord’s obligations to provide a fit and habitable premises such as 

“maintenance tasks, alterations, and remodeling.” Iowa Code 

§ 562A.15(2); see also Acad. Spires, Inc. v. Brown, 268 A.2d 556, 559 

(Essex County Ct. 1970) (listing repairs not within the scope of the 

implied warranty of habitability); Myron Moskovitz, The Implied Warranty 

of Habitability: A New Doctrine Raising New Issues, 62 Cal. L. Rev. 1444, 

1455–63 (1974) (providing examples).

It is not necessary to reach the question of whether the duty of the 

landlord related to fitness and habitability can be waived by contract. 

Iowa Code section 562A.15(2) only authorizes the landlord and tenant to 

agree that the tenant will perform certain “specified repairs, maintenance 
48

tasks, alterations, and remodeling” of the premises. This view is 

advocated by an academic commenter, who interprets the specificrepairs provision of the URLTA to authorize the parties to “enter into a 

separate written agreement, for adequate consideration, to shift at least 

some maintenance duties from the landlord to the tenant.” 

Cunningham, 16 Urb. L. Ann. at 96. Such an approach would be 

consistent with prior caselaw in which tenants made repairs and charged 

the landlords for the labor and materials. See, e.g., Marini, 265 A.2d at 

535; Jackson, 318 N.Y.S.2d at 11; Pines, 111 N.W.2d at 413.

Here, the tenant did not perform the repairs. Instead, the landlord

performed the repairs and attempted to charge the tenant for them. 

Section 562A.15(2) permits tenants to agree to make certain repairs, but 

it does not authorize the landlord to make repairs and then shift the 

costs to the tenants. Iowa Code § 562A.15(2). As a result, even if Iowa 

Code section 562A.15(2) allows the landlord and tenant to enter into 

agreements related to a single-family dwelling in which the tenant agrees 

to make repairs affecting the fitness and habitability of the premises, the 

landlord cannot prevail in this case on this theory because the landlord, 

and not the tenant, made the repairs to the door.

D. Whether the Landlord Complied with the Statutory Duty of 

Providing a Fit and Habitable Premises in This Case. The question 

remains whether the landlord, even if it cannot rely on the provisions of 

its lease under Iowa Code section 562A.15(2), nonetheless still met its 

statutory duty to provide a premises in a fit and habitable condition. 

There is no dispute in this case that without repairing the door, the 

leased premises would not be in “a fit and habitable condition.” Id.

§ 562A.15(1)(b). The landlord suggests the duty to provide a fit and 
49

habitable condition is satisfied if repairs are performed, but the costs are 

shifted to the tenant.

We reject this approach. The scope of a legal duty surely depends 

upon its context. For example, an insurer does not meet its duty to 

defend by providing counsel and billing the insured. See, e.g., Chem.

Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 223 n.17 

(3d Cir. 1999). A duty to support a child or spouse does not allow the 

party with the obligation to provide physical support and bill the other 

spouse or child for the costs. Likewise, we do not think the duty of the 

landlord to provide a habitable premises is so narrow that a landlord 

may utilize the duty to in effect vest in the landlord a monopolistic right 

to provide marked up services to the tenant to maintain habitability. If 

the IURLTA were so interpreted, the statutory duty of the landlord to 

provide a habitable premises would be eviscerated by allowing a landlord 

to escape financial obligations through a well-lawyered lease provision. 

In light of the history of the development of landlord–tenant law, we do 

not think it can be fairly concluded that the legislature intended the 

statutory duty of the landlord to “make all repairs and do whatever is 

necessary to put and keep the premise in a fit and habitable condition” 

to be satisfied by merely making repairs and shifting the costs to the 

tenant pursuant to categorical provisions in the original lease agreement.

V. Damages for Failure to Permit Sublease.

The landlord–tenant agreement in this case requires the 

permission of the landlord before the tenant may sublease the premises. 

The provision is a silent clause in that it does not expressly require that 

the landlord act in a reasonable or nonarbitrary fashion. Although there 

is older authority to the contrary, the modern trend is toward recognition 

of an implied standard of reasonableness in such an agreement. See
50

Mark S. Dennison, Landlord’s Unreasonable Refusal to Consent to 

Assignment or Sublease, 102 Am. Jur. Trials 277 § 5, Westlaw (database 

updated Apr. 2016); see also Homa-Goff Interiors, Inc. v. Cowden, 350

So. 2d 1035, 1037–38 (Ala. 1977); Laura Hunter Dietz, et al., 49 Am. 

Jur. 2d Landlord and Tenant § 991, at 905 (2006); Restatement (Second) 

§ 15.2, at 100–13.

Based on these authorities, we conclude the landlord did not act 

reasonably when it refused to allow the sublease of the premise when it 

attempted to enforce an unlawful provision in the lease. As a result, the 

district court erred in not allowing damages as a result of the landlord’s 

refusal to allow the tenant to sublease the premises.

VI. Automatic Cleaning Deductions From Rental Deposits 

Under IURLTA.

A. Lawfulness of Automatic Carpet-Cleaning Provision. This 

brings us to Apartments Downtown’s cross-appeal on the merits. The 

company argues the district court erred in holding the automatic carpetcleaning provision violated section 562A.12 of the IURLTA.

This lease provision reads as follows:

The carpets throughout the building are professionally 

cleaned each time apartments turn over occupancy. Tenants 

agree to a charge starting at $95 (efficiency) not to exceed 

$225 (6+ bedrooms) being deducted from the deposit for 

professional cleaning at the expiration of the Lease.

Iowa Code section 562A.12(3) authorizes only three grounds for 

withholding amounts from a rental deposit: (1) “[t]o remedy a tenant’s 

default in the payment of rent or of other funds due to the landlord 

pursuant to the rental agreement”; (2) “[t]o restore the dwelling unit to its 

condition at the commencement of the tenancy, ordinary wear and tear 

excepted”; and (3) “[t]o recover expenses incurred in acquiring possession 

of the premises from a tenant” who does not surrender and vacate the 
51

premises in compliance with the rental agreement. Iowa Code 

§ 562A.12(3)(a)–(c).

The problem with the carpet-cleaning provision is that it generates 

an automatic deduction from the rental deposit even when none of the 

conditions of section 562A.12(3) have been met. For example, suppose a 

tenant had Mary Poppins and her magical “Spoonful of Sugar” team 

restore the carpet to a pristine state at the end of the leasehold. 

Certainly, an additional carpet cleaning would not be necessary. 

Nonetheless, the charge would still apply.

We are not the first jurisdiction to address the legality of provisions 

providing for automatic deductions for carpet cleaning in lease 

agreements. For instance, in Ohio, which has also adopted the Uniform 

Residential Landlord and Tenant Act, it is “well-settled” that a provision 

in a lease agreement providing for an automatic reduction from the 

rental deposit to pay for professional carpet cleaning is unenforceable. 

Chaney v. Breton Builder Co., 720 N.E.2d 941, 943 (Ohio Ct. App. 1998), 

abrogated in part on other grounds by Parker v. I & F Insulation Co., 730 

N.E.2d 972, 977–79 (Ohio 2000). In another case, an Ohio court said,

In the absence of an affirmative showing, by way of 

itemization that there was a specific need to clean the carpet, 

[landlord]’s unilateral deduction was improper. A lease 

provision regarding carpet cleaning that is inconsistent with 

[the Ohio provision regarding rental deposits] is 

unenforceable.

Albreqt v. Chen, 477 N.E.2d 1150, 1153 (Ohio Ct. App. 1983) (citation 

omitted). A court in another jurisdiction held that required carpet 

cleaning at the conclusion of a lease did not amount to “tenant damages, 

waste or neglect of property” that could be deducted from the rental 

deposit and thus had to be supported by a separate writing. King v. 

Farkas, No. 82-2076, 1983 WL 161598, at *2 (Wis. Ct. App. Aug. 9, 
52

1983). By contrast, in Indiana, an appellate court concluded the 

landlord could require tenants to steam-clean carpets upon the 

termination of the lease and deduct cleaning charges from the rental 

deposit, including charges to pay for professional carpet cleaning. 

Castillo-Cullather v. Pollack, 685 N.E.2d 478, 483 (Ind. Ct. App. 1997),

abrogated in part on other grounds by Mitchell v. Mitchell, 695 N.E.2d 

920, 923 (Ind. 1998). Indiana law, however, unlike Iowa law, allows the 

landlord to deduct damages for any breach of the lease from the rental 

deposit, and the court reasoned that the parties were free to define in the 

lease the condition to which the premises had to be restored at the 

conclusion of the lease agreement. Id. at 483 & n.4.

We decline to modify the stated statutory purpose behind rental 

deposits. Their purpose is to ensure the tenant faithfully executes her or 

his duties under the lease agreement. See Iowa Code § 562A.6 (defining 

a rental deposit as “a deposit of money to secure performance of a 

residential rental agreement”). The rental deposit is not designed to 

serve as an advance payment of amounts that will always be due under 

the lease. Cf. Steenes v. MAC Prop. Mgmt., LLC, 16 N.E.3d 243, 251 (Ill. 

App. Ct. 2014) (finding that a move-in fee, as “a one-time upfront 

charge,” paid by the tenant with actual knowledge that it was 

nonrefundable was not a security deposit); Kopp v. Associated Estates 

Realty Corp., No. 09AP–719, 2010 WL 1510196, at *5–6 (Ohio Ct. App. 

Apr. 15, 2010) (determining that nonrefundable pet fee and redecorating 

fee were not rental deposits because they did not secure obligations of 

the parties, were not intended to be applied toward damages, and were 

not deducted from the deposit); Gartz v. J & J Ass’n Holding, LLC, 

No. 03–1978, 2004 WL 202876, at *5 (Wis. Ct. App. Feb. 4, 2004) (noting 

that a landlord’s carpet-cleaning fee was permissible under Wisconsin 
53

law because the lease did not provide that the cost would be deducted 

from the rental deposit).

It is possible that a landlord may be able to impose a 

nonrefundable charge on tenants for automatic carpet cleaning. See

Stutelberg v. Practical Mgmt. Co., 245 N.W.2d 737, 741 (Mich. Ct. App. 

1976) (finding a nonrefundable cleaning fee not part of the rental

deposit); Holmes v. Canlen Mgmt. Corp., 542 S.W.2d 199, 201–02 (Tex.

Civ. App. 1976). Additionally, the statute clearly authorizes the 

deduction of carpet-cleaning costs from rental deposits if necessary to 

restore the dwelling unit to the condition at the commencement of the 

tenancy, beyond the ordinary wear and tear. Iowa Code § 562A.12(3)(b).

What a landlord cannot do, however, is impose an automatic 

carpet-cleaning fee and deduct such charges from a rental deposit. See 

Chaney, 720 N.E.2d at 944; Albreqt, 477 N.E.2d at 1153. Under the 

IURLTA, “[i]f the rental deposit or any portion of a rental deposit is 

withheld for the restoration of the dwelling unit,” the landlord must 

provide notice and the tenant must have an opportunity to contest actual 

damages. Iowa Code § 562A.12(3). A landlord cannot by contract 

extract a waiver of the notice and opportunity to contest provisions when 

funds are withheld from the rental deposit. Id. § 562A.11.

There is one case arguably to the contrary. In Schaefer v.

Murphey, funds held in a rental deposit were characterized as 

nonrefundable by contract and the refunded amount of the rental deposit 

would be reduced by deducting the automatically nonrefundable fee. 

640 P.2d 857, 859 (Ariz. 1982). In other words, Schaefer stands for the 

proposition if rental deposits were comingled with funds that the 

landlord had an unqualified right to receive, the amount of the rental 

deposit would be reduced by the nondiscretionary payment. The Iowa 
54

IURLTA, however, prohibits commingling of landlord funds with rental 

deposits. Iowa Code § 562A.12(2). Additionally, Schaefer’s reasoning is 

inconsistent with our statutory scheme, which limits the uses of rental 

deposits and provides a process for challenging a landlord’s asserted 

right to retain them. Id. § 562A.12. Under Iowa law, rental deposits may 

only be used for the purposes outlined in Iowa Code section 562A.12. A 

landlord may not use a tenant rental deposit for any purpose other than 

those listed in the statute. Smolen v. Dahlmann Apartments, Ltd., 338 

N.W.2d 892, 894–95 (Mich. Ct. App. 1983) (holding a landlord may not

withhold a tenant rental deposit for any purpose not provided for in the 

statute). Under Iowa Code section 562A.12(3), “If the rental deposit or 

any portion of the rental deposit is withheld for the restoration of the 

dwelling unit, the statement shall specify the nature of the damages.” 

The landlord may then withhold only those amounts necessary to restore 

the dwelling unit to its prior condition. Iowa Code § 562A.12(3).

The carpet-cleaning provision providing for automatic deductions 

from the rental deposit is thus unenforceable under law for the reasons 

stated above, and the district court’s decision relating to it is upheld. 

Since we hold the provision violates the IURLTA, we need not address the 

small claims court’s determination that the provision was 

unconscionable. See id. § 562A.7(1)(a) (discussing unconscionability).14

14At trial in the small claims court, the witness for Apartments Downtown 

testified that notwithstanding the lease language, the company does not automatically 

deduct for carpet cleaning at the end of the lease term, but makes an individualized 

assessment of carpet cleanliness. In other words, Apartments Downtown argues that 

as a matter of grace, it does not enforce its otherwise impermissible lease provision. 

Both the small claims court and the district court treated the charge as an automatic 

one, and we think this finding is supported by substantial evidence. Notably, 

Apartments Downtown’s deposit statement—which included the $191 carpet-cleaning 

deduction—did not describe the condition of the carpet, but simply referred to the 

automatic charge provision in the lease. Nor are we persuaded that a landlord can 

defend an improper charge by arguing it could have assessed the same charge in a 

 
55

B. Bad-Faith Penalty. Apartments Downtown next challenges 

the $200 in punitive damages the small claims court awarded under the 

IURLTA, which the district court upheld. Iowa Code section 562A.12(3) 

requires a landlord to return a tenant’s rental deposit within thirty days 

from the end of the tenancy and receipt of the tenant’s mailing address 

or to furnish the tenant with a written statement explaining the specific 

reason for withholding the rental deposit or any portion of it. Under 

section 562A.12(7),

The bad faith retention of a deposit by a landlord, or any 

portion of the rental deposit, in violation of this section shall 

subject the landlord to punitive damages not to exceed two 

hundred dollars in addition to actual damages.15

Id. § 562A.12(7).

The landlord argues that the controversies in this case are goodfaith disputes and that, as a result, the $200 penalty under Iowa Code 

section 562A.12(7) must be reversed. The tenant responds by citing Ikari 

v. Mason Properties, 731 N.E.2d 975 (Ill. App. Ct. 2000). In that case, an 

Illinois appellate court assessed double damages for withholding a rental 

deposit in bad faith for repair and cleaning after the tenants had left 

their unit. Id. at 980–81. Here, the tenant argues that the retention of 

the deposits was not “a simple error in computation or confusion over 

dates.” The tenant further notes that the district court found the 

automatic carpet-cleaning and repair provisions as well as the charges

different, proper way. We are not called upon to address the issue of whether a 

landlord could require the tenant to pay in advance for a carpet cleaning as a separate 

charge, not included within the rental deposit. We leave that issue for another day.

15The legislature has since amended the subsection authorizing punitive 

damages for the bad-faith retention of a rental deposit. See 2013 Iowa Acts ch. 97, § 4. 

It currently provides for “punitive damages not to exceed twice the monthly rental 

payment in addition to actual damages.” Iowa Code § 562A.12(7) (2015).

_________________________
56

under them were unconscionable, thereby supporting punitive 

damages.16

Regardless of the legality or enforceability of the underlying 

contract provisions, Iowa Code section 562A.12(7) permits an award of 

punitive damages only for bad-faith retention of the deposit or any 

portion of the rental deposit. The IURLTA does not define bad-faith

retention of deposit by the landlord. This is problematic as bad faith can 

mean a number of different concepts, depending on context. See 

Austrum v. Fed. Cleaning Contractors, Inc., ___ F. Supp. 3d ___, ___ 2016 

WL 93404, at *6 (S.D. Fla. Jan. 8, 2016) (“ ‘Bad faith’ is an often 

inconsistently used phrase that has different meanings in different legal 

contexts.”); Staves v. Johnson, 44 A.2d 870, 871 (D.C. 1945) (noting that 

good faith is “not susceptible of exact definition”).

In some landlord–tenant cases involving rental deposits, bad faith 

has been defined somewhat broadly as including “vexatious, 

unreasonable, or outrageous conduct.” Ikari, 731 N.E.2d at 980. 

Similarly, in McGrath v. Mishara, the court noted that bad faith could be 

shown when the landlord “knew or should have known” that the rental 

deposit should not have been withheld from the tenant. 434 N.E.2d 

1215, 1219–20 (Mass. 1982). Using language like “should have known” 

and “unreasonable,” bad faith in Ikari and McGrath seems to have an 

objective dimension. In another case, a Texas appellate court declared 

that bad faith for purposes of withholding a rental deposit is defined as 

16Iowa Code section 562A.7 prohibits an unconscionable provision in a rental 

agreement. This Code provision provides that a court may refuse to enforce an 

unconscionable provision or limit its application to avoid an unconscionable result. 

Iowa Code § 562A.7(1)(a). There is no provision for imposition of a penalty for 

unconscionable provisions in Iowa Code section 562A.7. If a penalty is to be imposed 

for use of an unconscionable provision, it must be pursuant to Iowa Code section 

562A.11(2).

 
57

“a breach of faith; willful failure to respond to plain, well understood 

statutory or contractual obligations; lack of good faith; [or] improper 

motive.” Hogg v. Jaeckle, 561 S.W.2d 568, 572 (Tex. App. 1978).

In contexts other than landlord–tenant relationships, bad faith can 

have an expansive meaning. Bad faith in the insurance context means 

“the absence of a reasonable basis for denying benefits of the policy and 

defendant’s knowledge or reckless disregard of the lack of a reasonable 

basis for denying the claim.” Kiner v. Reliance Ins. Co., 463 N.W.2d 9, 12 

(Iowa 1990) (quoting Dolan v. Aid Ins. Co., 431 N.W.2d 790, 794 (Iowa 

1988)). In the context of fiduciary duty, bad faith has been described as 

including “purposeful obliviousness of the known facts suggesting

impropriety.” N.J. Title Ins. Co. v. Caputo, 748 A.2d 507, 514 (N.J. 2000).

While there is no definition of bad faith in the IURLTA, there is a 

definition of good faith. Under the IURLTA, good faith is “honesty in fact 

in the conduct of the transaction concerned.” Iowa Code § 562A.6(4). 

Although the definition of good faith under Iowa Code section 562A.6(4) 

is similar to that found in the Uniform Commercial Code, there is a 

notable difference. Under Iowa Code section 554.1201(2)(t), good faith is 

defined as “honesty in fact and the observance of reasonable commercial 

standards of fair dealing.” Under Iowa Code section 562A.6(4), however, 

there is no mention of the objective concept of reasonable commercial 

standards of fair dealing. Good faith under the IURLTA is limited to 

“honesty in fact.” It is entirely subjective.

It seems that if good faith amounts to “honesty in fact” under the 

statute, bad faith should be the opposite, or “dishonesty in fact.” 

Baldwin Cty. Hosp. Auth. v. Trawick, 504 S.E.2d 708, 710 (Ga. Ct. App. 

1998) (“ ‘[B]ad faith’ is the opposite of ‘good faith.’ ”); accord Nelson v. 

Lindaman, 867 N.W.2d 1, 13 (Iowa 2015). If so, the test of bad faith is a 
58

subjective test based upon dishonesty in fact by the landlord in the 

landlord–tenant relationship. See Minor v. Adams, 694 S.W.2d 148, 151 

(Tex. App. 1985) (“The test of bad faith is whether a person acted in 

dishonest disregard of the rights of the person concerned.”).

Under this approach, intentional or deliberate acts alone do not 

establish bad faith, but the landlord’s intention must also be dishonest. 

Leskinen v. Burford, 892 S.W.2d 135, 136 (Tex. App. 1994). A mere 

mistake does not establish dishonesty in fact. See H-L Apartments v. AlQawiyy, 440 N.W.2d 371, 373 (Iowa 1989). Further, the presence of 

conflicting evidence on a disputed question of fact does not establish bad

faith. Alltex Constr., Inc. v. Alareksoussi, 685 S.W.2d 93, 95–96 (1984).

We think the dishonesty-in-fact approach to bad faith in the 

IURLTA under Iowa Code section 562A.12(7) is the best approach in light 

of the definition of good faith under Iowa Code section 562A.6(4). There 

is no objective element in bad faith in Iowa Code section 562A.12(7) 

because there is no objective element in good faith as defined in section 

562A.6(4). The burden of proving bad faith, or dishonesty in fact, rests 

with the tenant. Lewis v. Jaeger, 818 N.W.2d 165, 187 (Iowa 2012). Bad 

faith, being a state of mind, may be established by substantial 

circumstantial evidence as well as by substantial direct evidence. Roeder 

v. Nolan, 321 N.W.2d 1, 5 (Iowa 1982).

Upon our review of the factual record in this case, we do not find 

substantial evidence of dishonesty in fact in connection with the use of 

the unlawful automatic carpet-cleaning charge. We have held that the 

landlord improperly structured the automatic cleaning charge by linking 

payment of the mandatory fee to the rental deposit. But while the 

landlord has used a lease provision that we have found illegal, there is no 

evidence of subjective dishonesty in fact in this record. The landlord did 
59

not make any misrepresentations to the tenant, but simply used a 

structure that we have concluded is prohibited by the IURLTA. By 

simply raising rental rates, the landlord could have obtained the amount 

of funds sufficient to offset any discretionary decision by the landlord to 

automatically clean the carpet in an apartment at the end of a tenancy. 

Under all the facts and circumstances, we cannot say on the current 

record that there is substantial evidence that the landlord’s use of the 

fully disclosed automatic cleaning charge amounted to dishonesty in fact

under Iowa Code section 562A.12(7).

In the alternative, the tenant asserts that the landlord’s retention 

of late fees from the deposit for nonpayment of the cost of the door 

repair, which it characterized as rent, was in bad faith. The landlord 

does not challenge the conclusion of the district court that the imposition 

of these late fees was improper. The landlord does assert, however, that 

(1) the unpaid maintenance charges under the lease when they are due 

become a payment owed to the landlord, (2) as a payment due to the 

landlord, the unpaid maintenance charge is considered part of rent―see

Iowa Code section 562A.6(9) (defining “rent” as “a payment to be made to 

the landlord under the rental agreement”),―and (3) as rent, the landlord 

was entitled to deduct the entire amount owed from the rental deposit 

under Iowa Code section 562A.12(3)(a) (authorizing deduction from 

rental deposits to cure default of the tenant “in the payment of rent or of 

other funds due to the landlord pursuant to the rental agreement”). In 

any event, as with the automatic carpet-cleaning deposit, no one has 

claimed that the lease provisions were misrepresented in any way or that 

the provisions were not fully disclosed in the lease. Although the 

landlord’s argument may be unpersuasive on the merits, we do not think 

there is substantial evidence in the record to support a conclusion that 
60

the landlord engaged in subjective dishonesty in fact under Iowa Code 

section 562A.12(7) with respect to the issues raised in connection with 

deduction of the door-repair expenses.

This is not to say that a tenant has no remedy for use of unlawful 

provisions in a rental agreement, at least under some circumstances. 

Iowa Code section 562A.11(2) provides that a landlord may not willfully 

use a lease provision known by the landlord to be prohibited under the 

IURLTA. The statute provides for actual damages “and not more than 

three months’ periodic rent and reasonable attorney fees” for knowing 

use of an illegal provision. Id.; see Caruso v. Apts. Downtown, Inc., 880

N.W.2d 465, ___ (Iowa 2016). No claim, however, has been presented in 

this case under this statutory provision.17

VII. Attorneys’ Fees.

In this case, the tenant submitted two affidavits related to 

attorneys’ fees to the magistrate after the matter was submitted. Lead 

counsel Warnock submitted an affidavit. So did second-chair counsel 

Boyer. The landlord resisted on grounds of lateness and that granting 

the fees would cause the small claims court to lack jurisdiction of the 

case. Before the magistrate could rule on the question, the landlord 

17There is an argument that the penalty provisions of Iowa Code section 

562A.11(2) and Iowa Code section 562A.12(7) are mutually exclusive. Iowa Code 

section 562A.11(2) is arguably directed at the use of unlawful statutory provisions and 

requires that the provision is known by the landlord to be unlawful. Iowa Code section 

562A.12(7) is arguably directed not at illegal provisions in a lease but instead toward 

factual disputes associated with retention of rental deposits. Each provision has its 

own statutory penalties. One may question whether the legislature intended the 

penalty provisions to be cumulative. For example, if a landlord utilizes a provision 

known to be illegal and is thus subject to penalties under Iowa Code section 562A.11(2), 

does that expose the landlord to bad-faith penalties under Iowa Code section 562A.12(7) 

as well? This seems like double dipping. The parties have not raised the question of 

the relationship between penalty provisions in Iowa Code section 562A.11(2) and 

section 562A.12(7) in this case. In any event, it is not necessary to consider the 

relationship in light of our disposition of the contested issues on other grounds.

 
61

appealed to district court and the magistrate did not enter a ruling on 

the attorneys’ fee issue. On appeal, the district court concluded that

the attorney fee affidavit filed by Attorney Christine Boyer on 

June 21, 2013 includes [a] sufficient breakdown of the 

attorneys’ fees sought by Plaintiff’s counsel such that the 

court can, and does, determine that the fees sought are 

reasonable.

The district court did not specifically mention the fees of lead counsel 

Warnock.

On appeal to this court, tenant seeks an award of the attorneys’ 

fees of lead counsel Warnock. The landlord concedes error was 

preserved on the issue. The landlord argues the district court was in the 

best position to evaluate the work of counsel and that the fees sought by 

lead counsel were excessive. The landlord also argues the district court 

lacked jurisdiction to hear the matter because the claim, with attorneys’

fees, exceeded the $5000 jurisdictional limit of small claims court. 

Finally, the landlord also contends that the tenant was not a prevailing 

party in the litigation and is therefore not entitled to attorneys’ fees. We 

have rejected these last two claims. Thus, the only remaining issue 

raised is whether the fees sought by the tenant were excessive, as 

claimed by the landlord, or reasonable, as claimed by the tenant. See

Iowa Code § 562A.12(8).

As a preliminary matter, however, we consider a question of 

whether the tenant was required to file in the district court a motion to

enlarge or expand under Iowa Rule of Civil Procedure 1.904 in order to 

preserve the issue. We have held that because Iowa Code chapter 631 

contains no express provision for posttrial motions with respect to 

appeals to the district court, posttrial motions are not available at this 

stage of the proceeding. See Midwest Recovery Servs. v. Cooper, 465 
62

N.W.2d 855, 856 (Iowa 1991). This case is in a slightly different posture, 

as it does not involve an appeal from a magistrate to the district court 

but instead a discretionary appeal from the district court to this court. 

We have cited Midwest Recovery, however, in support of the proposition 

that there are no posttrial motions on appeal from a small claims court 

judgment. See GE Money Bank, 773 N.W.2d at 539. 

The principle embraced in Midwest Recovery is fully applicable 

here. The trial of the matter occurred before the magistrate in this case. 

The case was then appealed to the district court. Midwest Recovery

makes clear that a motion for expanded findings is not available when 

the case is tried under Iowa Code chapter 631. 465 N.W.2d at 855–57. 

If so, logic dictates there is no basis for a rule 1.904 motion after the 

district court has determined the small claims appeal.

Aside from our caselaw and the lack of authorization of posttrial 

motions in Iowa Code chapter 631, grafting rule 1.904(2) into small 

claims proceedings would be poor policy. The parties in small claims 

court are often unrepresented by attorneys. Our caselaw, however, 

demonstrates that Iowa Rule of Civil Procedure 1.904 can be 

complicated. In close cases, even a skilled lawyer has difficulty 

determining whether a rule 1.904 motion should be filed. A misstep, 

however, may result in waiver of a claim or even loss of an appeal. 

Requiring small claims litigants to understand the intricacies of Iowa 

Rule of Civil Procedure 1.904(2) cuts against the policy of Iowa Code 

chapter 631 of providing a swift and simple procedure for determining 

disputes. Further, the complexity of trial procedure is one of the reasons 

the implied warranty of habitability has been ineffective. See Super, 99 

Cal. L. Rev. at 440. Small claims court is, after all, “the people’s court” 

where emphasis belongs on simplicity and fairness for pro se litigants. 

Kimble v. Kimble, 264 P.3d 1229, 1231–32 (Okla. 2011).
63

With that necessary digression, we now turn to the issue the 

parties have asked us to decide, namely, whether the fees of lead counsel 

are excessive. While we could, perhaps, decide the issue on appeal, we 

think the better approach at this stage is to remand the question of 

Warnock’s attorney’s fees to the district court to allow the district court 

in the first instance to consider the reasonableness of the fee request of 

lead counsel. We review the district court’s award of attorneys’ fees for 

abuse of discretion. GreatAmerican, 691 N.W.2d at 732. As a result, the 

district court should evaluate Warnock’s fee application in the first 

instance. On remand, the district court should further determine the 

merits of any claim for appellate attorneys’ fees. See Ayala, 415 N.W.2d 

at 606; First Nw. Nat’l Bank v. Crouch, 287 N.W.2d 151, 154 (Iowa 1980).

VIII. Conclusion.

For the above reasons, we affirm the district court in favor of the 

tenant on the issue of jurisdiction and cleaning costs. We reverse the 

decision of the district court adverse to the tenant on the issue of liability 

for the door repair and on the claim for damages for failure to permit the 

tenants from subleasing the apartment. We also reverse the district 

court decision on punitive damages adverse to the landlord under Iowa 

Code section 562A.12(7).

On the issue of attorneys’ fees, we affirm the judgment of the 

district court as to the reasonableness of fees awarded attorney Boyer, 

but remand for a determination of reasonable attorney fees in connection 

with attorney Warnock’s work on this case and for consideration of any 

claim for appellate attorneys’ fees. Costs are assessed to Apartments 

Downtown.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Mansfield, Waterman, and Zager, JJ., 

who concur in part and dissent in part.
64

#14–0820, De Stefano v. Apartments Downtown, Inc.

MANSFIELD, Justice (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part because I disagree 

with two conclusions reached by the court. In particular, I do not think 

small claims courts can award unlimited attorneys’ fees without regard 

to the $5000 jurisdictional limit. Nor do I think the Iowa Uniform 

Residential Landlord and Tenant Act (IURLTA) makes it illegal for the 

landlord and the tenant of a single-family home to agree that the tenant 

will be financially responsible for a repair to an exterior door that is 

vandalized during the tenancy.

I. Small Claims Jurisdiction.

I would hold that attorneys’ fees count against the jurisdictional 

limits of the small claims court. The statute provides that the small 

claims court has jurisdiction over those “civil action[s] for a money 

judgment where the amount in controversy is . . . five thousand dollars 

or less . . . exclusive of interest and costs.” Iowa Code § 631.1(1) (2011). 

So, the question is whether attorneys’ fees are costs or not. This is an 

important question because what’s good for the goose is good for the 

gander. If a college student represented by a legal aid agency can recover 

her attorneys’ fees from a landlord in small claims court, so can a debt 

collector suing an indigent working single parent.

We are interpreting one term, “costs,” in one statute, Iowa Code 

section 631.1. We cannot have the term mean one thing for plaintiffs 

who are tenants and something different for other plaintiffs. And 

although the matter is not free from doubt, I believe the majority’s view of 

the matter is erroneous for several reasons. 

First, as the court acknowledges, we have consistently interpreted 

statutes that use the term “costs” alone to exclude attorney fees. See
65

Weaver Constr. Co. v. Heitland, 348 N.W.2d 230, 233 (Iowa 1984) (“We do 

not agree, however, that the word ‘costs’ [in chapter 677] should be so 

liberally stretched as to include attorney fees.”); Turner v. Zip Motors, 245 

Iowa 1091, 1100, 65 N.W.2d 427, 432 (1954) (“[Section 625.1] has 

always been held to mean the ordinary costs, not including attorney 

fees.”). I am not aware of a single contemporary Iowa statute lacking the 

phrase “attorney fees” while using the term “costs” alone that has been 

interpreted to award attorney fees as costs. Why start here?

Second, I am not persuaded that when the general assembly 

enacted the Unified Court Act in 1972, it intended to adopt caselaw from 

1882 and 1932 relating to the old court system. The statute setting forth 

the jurisdictional limits in the old system was worded differently. See

Iowa Code § 601.2 (1971) (stating that justice-of-the-peace courts had 

jurisdiction “where the amount in controversy does not exceed one 

hundred dollars”). 

As the majority recognizes, the whole idea of the Unified Court Act 

was to create a new and better system than what had gone before. And 

when the legislature did so, it seems to have consciously borrowed from 

the federal diversity statute. See 28 U.S.C. § 1332 (2012) (“The district 

courts shall have original jurisdiction of all civil actions where the matter 

in controversy exceeds the sum or value of $75,000, exclusive of interest 

and costs . . . .”); 1972 Iowa Acts ch. 1124, § 60 (codified at Iowa Code 

§ 631.1 (1973)) (“A small claim is a civil action for money damages where 

the amount in controversy in money is one thousand dollars or less, 

exclusive of interests and costs . . . .”). 

Under the federal diversity statute, it was well understood that 

attorneys’ fees were separate from “interest and costs.” See, e.g., Mo. 

State Life Ins. Co. v. Jones, 290 U.S. 199, 202, 54 S. Ct. 133, 134, 78 
66

L. Ed. 267, 269 (1933); 14AA Charles A. Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and Procedure § 3712, at 806 (4th ed. 

2011). So I would be more inclined to follow the federal interpretations of 

the diversity statute as a guide to interpreting Iowa Code section 631.1. 

See Peoples Trust & Sav. Bank v. Armstrong, 297 N.W.2d 372, 373–75 

(Iowa 1980) (noting the resemblance between the wording of Iowa Code 

section 631.1(1) and that of the federal diversity statute and applying 

federal diversity precedents to determine when interest counts against 

the small claims jurisdictional limit).

Furthermore, in the original 1972 Unified Court Act, when the 

word “costs” was used in other contexts, it clearly did not include 

attorneys’ fees. See 1972 Iowa Acts ch. 1124, § 65 (codified at Iowa Code 

§ 631.6 (1973)) (“Fees and costs shall be one-half of fees and costs in 

regular civil actions in district court.”). “When the same term appears 

multiple times in the same statute, it should have the same meaning 

each time.” State v. Paye, 865 N.W.2d 1, 7 (Iowa 2015).

Another reason to interpret costs in the small claims jurisdictional 

statute as something different from attorneys’ fees is that it furthers the 

legislature’s goal of “a simpler, easier, and less expensive procedure” in 

which the parties “need not retain an attorney unless they wished.” 

Barnes Beauty Coll. v. McCoy, 279 N.W.2d 258, 259–60 (Iowa 1979). 

Plainly, if attorneys’ fees don’t count against the jurisdictional limit, that 

is an incentive for parties to use attorneys in small claims court. And 

the presence of an attorney, while generally desirable if the matter is 

significant, tends to undermine the informality of the proceeding.18 From 

18The majority uses the apt phrase: “the people’s court.” Thus, our court 

declined to give “preclusive effect to small claims adjudications in subsequent regular 

district court trials [because to do so] would be inconsistent with maintaining the 

 
67

the very beginning, the legislature made clear that small claims cases 

don’t need attorneys. See 1972 Iowa Acts ch. 1124, § 70 (codified at 

Iowa Code § 631.11 (1973)).

Under the majority’s approach, some small claims defendants may 

be subject to substantial judgments—but without the procedural 

protections afforded in district court. It is antithetical to the purpose of 

small claims court to allow potentially open-ended attorney-fee recoveries 

that could dwarf the stated small claims jurisdictional limit.

Finally, I am not persuaded that the out-of-state authority on 

which the court relies—particularly Lettenmaier v. Lube Connection, Inc., 

741 A.2d 591 (N.J. 1999)—has any bearing on this issue. The New 

Jersey court rule involved in Lettenmaier has different wording from 

Iowa’s statute. See id. at 593 (quoting New Jersey Rule 6:1–2(a)(1), 

which mentions only “the amount in controversy”). 

Furthermore, unlike my colleagues, I would not even give minimal 

weight to Lettenmaier’s citation of two Iowa cases because it miscited

them. See id. at 594–95 (citing Ayala v. Ctr. Line, Inc., 415 N.W.2d 603 

(Iowa 1987); Maday v. Elview-Stewart Sys. Co., 324 N.W.2d 467 (Iowa 

1982)). Lettenmaier cited Maday for “examining structure of statute 

allowing counsel fees and concluding that, because such fees were 

grouped with costs, they were costs.” Id. at 594. Lettenmaier cited Ayala

for “refusing to consider attorney fees in determining whether 

jurisdictional limit had been exceeded because they are separate and 

distinct events giving rise to cause of action and cannot be assessed until 

simplicity and informality of small claims procedures.” Village Supply, Inc. v. Iowa 

Fund, Inc., 312 N.W.2d 551, 554 (Iowa 1981).

_________________________
68

liability is established.” Id. at 595. I can’t find those propositions 

anywhere in Maday and Ayala.19

II. Lease Provisions Making Tenants Responsible for Costs of 

Repairing an Exterior Door Damaged by Third-Party Vandalism. 

The lease between Apartments Downtown—on the one hand—and 

Elyse De Stefano and her housemates—on the other hand—is three 

pages long. De Stefano testified she did not read the lease before signing 

it, but she does not dispute that she assented to its terms. She testified 

that no one misrepresented what was in the lease. 

In paragraph 30, the lease provides, “Tenants agree to pay for all 

damages to the apartment windows, screens, and doors, including 

exterior unit doors (including random acts of vandalism).” The lease also 

provides in paragraph 33, “Unless the Landlord is negligent, Tenants are 

responsible for the cost of all damages/repairs to windows, screens, 

doors, carpet, and walls, regardless of whether such damage is caused by 

residents, guests or others.” Additionally, the lease contains a $452–

$690 estimated cost for the repair or replacement of a prehung entry 

door. 

The lease further provides that the landlord’s Iowa City 

Maintenance would perform all repairs “unless written authorization is 

secured from Landlord.” It states that Iowa City Maintenance charges 

$70 per hour during regular business hours and $90 per hour during 

nights and weekends, with a minimum of one hour per service call. Iowa 

City Maintenance is an alter ego of Apartments Downtown. 

19To be clear, I have no quarrel with how my colleagues have summarized 

Maday and Ayala in their majority opinion. But it is wrong to give the Lettenmaier

decision any credence because it happens to cite to Maday and Ayala.

 
69

The three-page lease has some circling and other marks on it. 

Some of the marks are in the vicinity of the foregoing provisions. 

According to the business manager of Apartments Downtown, the 

presence of these markings confirmed that specific provisions of the lease 

were actually reviewed with the tenants before they signed it. As 

summarized by the district court, “The Court finds no evidence in the 

record that there was a lack of honesty in fact in the conduct of the 

transaction concerned.”

The door replacement charge and the subsequent late fees 

stemmed from a burglary that occurred at De Stefano’s residence in 

October 2010. De Stefano and the other tenants filed a police report 

with the Iowa City Police Department. The report stated that the 

burglary had left the exterior doorframe and the door lock damaged, and 

the tenants reported two or three cans of beer as well as a bottle of 

flavored vodka stolen. Apartments Downtown was called to repair the 

door on October 11—presumably by De Stefano or one of her cotenants.

Apartments Downtown arranged for Iowa City Maintenance to 

replace the kicked-in door, and the charges were billed to De Stefano and 

her roommates. The total cost of the repair and replacement was 

$598.46, which included $318.46 for the replacement door and $280 for 

four hours of labor. Upon receipt of this charge, one of De Stefano’s 

housemates sent a letter dated November 2 to Apartments Downtown, 

contesting the charge and advising that the damage was not caused by 

any of the tenants and that the police investigation was ongoing. In her 

letter, the tenant referenced paragraph 30 of the lease agreement, which 

stated, “Tenants agree to pay all damages to the apartment windows, 

screen, and doors, including exterior unit doors (including random acts 
70

of vandalism).” Yet the tenant said she believed this lease provision to be 

unconscionable and thus unenforceable by a court.

Apartments Downtown responded on November 17,

By signing the lease agreement you agree to pay for all 

damages to the apartment windows, screens, and doors, 

including exterior unit doors, including random acts of 

vandalism. If . . . the door was broken down during a 

burglary, the destruction of the door is considered vandalism 

. . . . Even though the door was damaged during the break 

in, and not by a guest of the tenants, it still falls under the 

basis o[f] a visitor, whether they were a known guest or not 

. . . . [I]f the police investigation results in the finding of the 

guilty party that was responsible for the damage, then at 

that time we would be more than happy to charge said 

person(s) for the damage. Until then however, the damage 

incurred to the property fall[s] under the responsibility of the 

leased tenants. At this time you currently still have an 

outstanding balance of 598.46 on your account, if this would 

happen to still be current when December[’]s rent comes 

due, it will accumulate the standard $40.00 late charge.

A principal bone of contention between the parties is whether the 

IURLTA permits the lessor and the lessee of a single-family home to agree 

in writing that the lessee will be responsible for the repair of a door 

damaged by third-party vandalism during the lessee’s tenancy. My 

colleagues ultimately do not decide this issue, but they frame the issue 

in such one-sided terms that I feel obligated to respond.

Section 562A.15(1) of the IURLTA imposes a warranty of 

habitability on the landlord. Iowa Code § 562A.15(1) (2011). Among 

other things, the landlord shall “[c]omply with the requirements of

applicable building and housing codes materially affecting health and 

safety” and “[m]ake all repairs and do whatever is necessary to put and 

keep the premises in a fit and habitable condition.” See id. 

§ 562A.15(1)(a)–(b). However, the duties in subsection (1) of section 

562A.15 are immediately qualified by subsection (2): 
71

The landlord and tenant of a single family residence may 

agree in writing that the tenant perform the landlord’s duties 

specified in paragraphs “e” and “f” [relating to waste removal

and the provision of water, hot water, and heat], and also

specified repairs, maintenance tasks, alterations, and 

remodeling, but only if the transaction is entered into in 

good faith.

Id. § 562A.15(2) (emphasis added).

My colleagues present a lengthy argument as to why subsection (2) 

affects only paragraphs (e) and (f) of subsection (1) and not the rest of the 

subsection. In other words, according to this argument, the tenant of a 

single-family residence may not agree to assume any responsibilities 

relating to the implied warranty of habitability except those covered by 

paragraphs (e) and (f). The majority does not ultimately adopt this 

position, but it does not acknowledge or even mention the 

counterarguments against this view.

The biggest problem with this interpretation of the IURLTA is that 

it gives no effect to the language after “and also” in subsection (2). See 

id. § 4.4(2) (setting forth the presumption that “[t]he entire statute is 

intended to be effective”).

Clearly, the language “and also specified repairs, maintenance 

tasks, alterations, and remodeling” must refer to landlord duties other 

than those set forth in paragraphs (e) and (f). Otherwise, the language 

would be totally superfluous. Driving this point home is that our 

legislature used the separator “and also,” indicating that what followed 

“and also” was going to be something different from what preceded it. 

Furthermore, it is difficult to conceive of alterations and remodeling that 

would be needed to provide waste removal, water, hot water, or heat, if 

indeed the entire subsection only applied to the duties in paragraphs (e) 

and (f).
72

Equally clearly, the language “and also specified repairs, 

maintenance tasks, alterations, and remodeling” must relate to landlord 

duties covered by paragraphs (1)(a), (1)(b), (1)(c), or (1)(d). For one thing, 

section 562A.15(2) is placed within the statute and written as if it were a 

qualifier to section 562A.15(1) as a whole. Moreover, if the terminology 

“specified repairs, maintenance tasks, alterations, and remodeling” did 

not relate to matters that would otherwise be landlord duties under 

paragraphs (1)(a), (1)(b), (1)(c), or (1)(d), the language would again be 

totally superfluous. Under a separate section of the IURLTA, landlords 

and tenants can always agree to various things in their leases if their 

agreements are not contrary to the terms of the IURLTA—and there is no 

“good faith” requirement. See id. § 562A.9(1) (stating that “[t]he landlord 

and tenant may include in a rental agreement, terms and conditions not 

prohibited by this chapter or other rule of law”). The legislature did not 

need to include the verbiage after “and also” to authorize the same thing.

Furthermore, the term “specified repairs” in subsection (2) 

seemingly corresponds with language in paragraph (1)(b) requiring the 

landlord to “[m]ake all repairs and do whatever is necessary to put and 

keep the premises in a fit and habitable condition.” Iowa Code 

§ 562A.15(1)(b), .15(2). Under the argument offered by the majority, 

repairs has to mean something different in two subsections of the same 

statute. That seems unlikely. See Paye, 865 N.W.2d at 7 (indicating that 

the same term should have the same meaning when it appears multiple 

times in the same statute).

Oddly, after scouring the country for out-of-state caselaw to 

support its interpretation of Iowa’s sui generis small claims jurisdictional 

statute, including the aforementioned New Jersey case, the majority 
73

omits discussion of pertinent out-of-state caselaw here—even though we 

are talking about a uniform act adopted in many jurisdictions.

Existing caselaw interpreting the URLTA undermines the argument 

presented by the majority. In Sullivan v. Subramanian, 2 P.3d 66 (Alaska 

2000), the court referenced the duties in Alaska’s counterpart to 

paragraphs (1)(a), (1)(b), (1)(c), and (1)(d), and then added, “Barring 

circumstances that do not exist here, landlords are prohibited from 

shifting these duties to their tenants.” Id. at 69–70 (emphasis added). In 

a footnote, the court then revealed the circumstances under which those 

duties could be shifted by citing the “specified repairs, maintenance 

tasks, alterations, or remodeling” language in Alaska’s counterpart to 

section 562A.15(3). Id. at 70 n.8. The court also cited a prior Alaska 

case, see id., which indicated that Alaska’s counterpart to section 

562A.15(3) “governs landlords’ attempts to shift duties such as the 

maintenance of common areas [found in the counterpart to Iowa Code 

section 562A.15(1)(b)] to tenants,” Coburn v. Burton, 790 P.2d 1355, 

1357 (Alaska 1990). 

Similarly, in L & M Investments Co. v. Morrison, 605 P.2d 1347, 

1350 (Or. Ct. App. 1980), the court cited Oregon’s counterpart to section 

562A.15(1) and said, “[I]t is presumed that the stated rental is for 

premises in a habitable condition and the landlord is estopped from 

contending otherwise, at least in the absence of an express written 

agreement pursuant to [Oregon’s counterpart to section 562A.15(3)].” 

In Graber v. Engstrom, 384 N.W.2d 307, 308 (N.D. 1986), there was 

a scenario like the present one where the landlord of a single-family 

residence (a mobile home) argued that the lease had transferred certain 

habitability obligations to the tenant including the obligation to repair a 

broken window. Discussing North Dakota’s counterpart to Iowa Code 
74

section 562A.15, the court indicated this shifting of responsibility would 

be lawful:

Section 47–16–13.1(1), N.D.C.C., among other things, 

requires a landlord of a residential dwelling unit to comply 

with the requirements of applicable building and housing 

codes materially affecting health and safety; to make all 

repairs and do whatever is necessary to put and keep the 

premises in a fit and habitable condition; and to maintain in 

good and safe working order and condition all electrical, 

plumbing, sanitary, heating, and other facilities and 

appliances supplied or required to be supplied by the 

landlord. Section 47–16–13.1(4), N.D.C.C., however, allows 

the landlord and tenant of a single-family residence to agree 

in writing that the tenant perform the landlord’s duties 

concerning specified repairs, maintenance tasks, alterations 

and remodeling if the transaction is entered into in good 

faith.

Id. at 308–09 (citation omitted). However, the court found the lease 

provision in question was “vague as to the specific maintenance tasks 

intended to be delegated to” the tenant and therefore upheld the lower 

court’s fact determination that they did not include the matters at issue. 

Id. at 309–10.

Also, the Rhode Island Supreme Court, interpreting a statute 

somewhat different from the uniform act but with nearly identical 

wording in relevant part to Iowa Code section 562A.15(2), said,

It is . . . clear that the landlord may shift the responsibility 

for performing ordinary specified repairs and maintenance of 

the rented dwelling premises to the tenant, provided that the 

parties act in good faith; the parties agree in writing; the 

agreement is supported by adequate consideration; and the 

agreement is not in violation of [the Rhode Island statute 

governing landlord’s maintenance duties and the landlord’s 

ability to contract them away].

State Water Res. Bd. v. Howard, 729 A.2d 712, 715 (R.I. 1999) (per 

curiam). In that case, the state leased residential properties to tenants 

on condition that tenants assumed the responsibility for all necessary 

maintenance and repairs in exchange for a deduction from the fair 
75

market value of rent. Id. at 713. Because the leases did not “shift the 

responsibility to cure existing or past violations of the applicable housing 

and building codes to the tenants” and the state had attempted to 

negotiate the repair-shifting provisions in good faith, the challenged 

provisions were upheld under Rhode Island law. Id. at 715.

I agree that an operating lock on an exterior door is one aspect of 

habitability. See Brichacek v. Hiskey, 401 N.W.2d 44, 47 (Iowa 1987) 

(“On the record of this case we believe that a landlord is under a duty to 

provide a front door lock as a part of his overall duty of providing 

habitable quarters.”). And I assume that the burglary here, like most 

burglaries, resulted in the damaged side-entry door no longer being 

secure. However, Iowa Code section 562A.15(2) does not provide an 

exception for “specified repairs so long as they do not relate to 

habitability.” Instead, the exception is simply for specified repairs. 

Furthermore, if the parties’ ability to contract regarding specified repairs 

were limited by the landlord’s duty to perform any repair that relates to 

habitability, it is easy to foresee that many disputes would arise. Some 

door and window repairs relate to habitability; some do not. Thus, I 

believe the IURLTA allows a landlord and a tenant of a single-family 

home to agree that the tenant will perform specified repairs, where the 

subject matter is specified and the task to be performed can be fairly 

characterized as a repair. That is what section 562A.15(2) says.

Tenants living in a single-family residence may be in a better 

position than a landlord who is not on the scene to safeguard doors, 

screens, and windows from outside harm. Note that the argument 

bruited by the majority applies to all landlords and tenants of singlefamily residences. Thus, a lifelong Iowan who rents her home upon 
76

retiring to Florida could not contract that the renter would be responsible 

for repairing the doors to the home.

The court ultimately finds for De Stefano on an alternative, 

narrower ground. The court reasons that even if De Stefano might be 

required to perform specified repairs under section 562A.15(2), she 

cannot be required to pay for such repairs when performed by the 

landlord. While this ground is more plausible, I do not believe the 

IURLTA draws such a fine line. The IURLTA allows any provision “not 

prohibited by this chapter or other rule of law,” Iowa Code § 562A.9(1), 

while disallowing any provision that “waive[s] . . . rights or remedies 

under this chapter,” id. § 562A.11(1)(a). Here, the lease provision merely 

imposed on the tenant the duty to pay for a repair that the law 

authorized the parties to agree would be the tenant’s responsibility. 

Significantly, this is not a case where the tenant sought to perform the 

repair herself or himself and was denied permission to do so. Rather, the 

lease provided that repairs would be performed by Iowa City Maintenance 

unless the tenants obtained written authorization from the landlord. The 

tenants never sought such authorization.

For these reasons, I would hold that Iowa law does not prohibit a 

landlord and a tenant of a single-family residence from agreeing in the 

lease that the tenant will pay for the costs of repairing damage to a door 

resulting from third-party vandalism when the damage occurs during the 

lease term and is not due to the landlord’s negligence. I further note that 

other provisions in the IURLTA protect the tenant in other, more serious 

circumstances than a vandalized door. See id. § 562A.25 (authorizing 

the tenant to vacate all or part of the premises and terminate the lease or 

receive a rent reduction when “the dwelling unit or premises are 

damaged or destroyed by fire or casualty to an extent that enjoyment of 
77

the dwelling unit is substantially impaired”); see also 49 Am. Jur. 2d 

Landlord and Tenant § 704, at 679 (2006) (noting that even a general 

covenant to repair “merely binds the lessee to make ordinary repairs, as 

opposed to extensive structural repairs”).20

III. Conclusion.

I agree with the court’s resolution of the automatic carpet-cleaning 

deduction, the bad-faith penalty, and attorneys’ fees. However, in my 

view, attorneys’ fees are included in the $5000 maximum amount in 

controversy recoverable in small claims. In addition, I do not believe 

Iowa law forbids lease provisions requiring the tenant of a single-family 

home to pay the costs of repairing door vandalism that occurs during the 

tenancy. If I were deciding this case, I would affirm the thorough order of 

the district court except I would reverse the decision on punitive 

damages and remand for consideration of Attorney Warnock’s fees 

subject to the overall $5000 jurisdictional limit.

Waterman and Zager, JJ., join this concurrence in part and 

dissent in part.

20A lessee of real property generally has an insurable interest in the leased 

property. See Neubauer v. Hostetter, 485 N.W.2d 87, 89–90 (Iowa 1992). In this case, 

the record indicates that the landlord had insurance for the premises, but cost of the 

door repair was below the deductible.