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TRANSCRIPT
TRANSACTIONAL TRACKReal Estate 101
1:30 p.m.- 2:45 p.m.
Presented bySean Wandro
Meardon, Sueppel & Downer P.L.C.122 S. Linn Street
Iowa City, IA 52240Phone: 319-338-9222
2016 Nuts & Bolts SeminarCoralville (Eastern Iowa)
2016 Nuts & Bolts SeminarCoralville (Eastern Iowa)
FRIDAY, OCTOBER 21, 2016FRIDAY, OCTOBER 21, 2016
IOWA REAL ESTATE LAW
SEAN W. WANDRO MEARDON, SUEPPEL & DOWNER P.L.C.
122 S. Linn Street Iowa City, Iowa 52240
Telephone: (319) 338-9222
Revised October 2016
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TABLE OF CONTENTS
I. CONTRACTS TO SELL OR OTHERWISE TRANSFER REAL ESTATE .......................... 1
A. Residential Property Seller Disclosure Statements ....................................................... 1
B. Statute of frauds . .............................................................................................................. 2
C. Contents of purchase agreements .................................................................................... 2
D. Installment contracts ........................................................................................................ 3
E. Caveat emptor (“Let the buyer beware”) ....................................................................... 4
F. Equitable conversion ........................................................................................................ 4
II. EXAMINING ABSTRACTS AND CURING TITLE DEFECTS ............................................. 4
A. Examination of abstracts .................................................................................................. 4
B. Iowa Land Title Standards .............................................................................................. 6
C. Marketable Title Acts. ...................................................................................................... 6
D. Title Guaranty ................................................................................................................... 9
E. Curing title defects ......................................................................................................... 11
III. MECHANIC’S LIENS ............................................................................................................... 12
A. Persons entitled to a mechanic’s lien ............................................................................ 12
B. Perfection of the mechanic’s lien ................................................................................... 13
C. Priority of the mechanic’s lien ...................................................................................... 14
D. Special limitations on mechanic’s liens ........................................................................ 15
E. Discharge of the mechanic’s lien ................................................................................... 15
F. Actions to enforce or challenge the mechanic’s lien .................................................... 15
G. Actions by a subcontractor against a principal contractor ......................................... 16
H. Satisfaction of the mechanic’s lien ................................................................................. 16
IV. OTHER MISCELLANEOUS LIENS ON PROPERTY .......................................................... 16
A. Real estate tax liens ......................................................................................................... 16
B. Special assessments ......................................................................................................... 16
C. State income tax liens ..................................................................................................... 17
D. Federal income tax liens ................................................................................................. 17
E. Federal estate tax liens ................................................................................................... 17
F. Federal gift tax liens ....................................................................................................... 18
G. Inheritance tax liens ........................................................................................................ 18
H. Judgment liens ................................................................................................................. 18
I. Mortgage liens ................................................................................................................. 18
J. Homestead exemption ..................................................................................................... 19
V. QUIET TITLE ACTIONS .......................................................................................................... 19
A. Persons entitled to bring a quiet title action . ............................................................... 19
B. Function of the quiet title action ................................................................................... 19
C. Nature of the action to quiet title .................................................................................. 20
D. Content of the petition to quiet title ............................................................................. 20
E. Service of notice ............................................................................................................. 20
F. Appointment of a guardian ad litem ............................................................................ 20
G. Servicemembers Civil Relief Act (SCRA) .................................................................... 20
H. Costs ................................................................................................................................ 21
VI. REAL ESTATE CLOSINGS ..................................................................................................... 21
A. Closing Documents ........................................................................................................ 21
B. The Closing Statement ................................................................................................... 21
C. The Deed ......................................................................................................................... 22
D. Declaration of Value ...................................................................................................... 23
E. Groundwater Hazard Statement ................................................................................... 23
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F. HUD-1 Statement ........................................................................................................... 23
G. Post-closing ..................................................................................................................... 24
VII. FORFEITURE ............................................................................................................................ 24
VIII. FORECLOSURE ........................................................................................................................ 26
A. Notice and Opportunity to Cure ................................................................................... 26
B. Notice of Mortgage Mediation Assistance for One and Two-Family Dwellings ...... 26
C. Mediation Releases for Agricultural Property ............................................................. 26
D. Special Protection for Members of the Armed Forces . .............................................. 26
E. Judicial Foreclosure ....................................................................................................... 26
F. Non-judicial Foreclosure ............................................................................................... 29
G. Deed in Lieu of Foreclosure .......................................................................................... 29
IX. PARTITION ................................................................................................................................ 30
A. Basis for the action ......................................................................................................... 30
B. Governing statutes and rules ........................................................................................ 30
C. Partition by sale v. Partition in-kind ............................................................................ 30
D. Parties having a right to partition . ............................................................................... 30
E. Limitation on commencement where probate is pending .......................................... 30
F. Content of the petition for partition ............................................................................. 30
G. Necessary and optional parties to the partition action ............................................... 31
H. Joinder of claims and counterclaims ............................................................................. 31
I. The decree ...................................................................................................................... 31
J. Costs ................................................................................................................................ 31
X. ADVERSE POSSESSION .......................................................................................................... 31
A. Elements of adverse possession claim .......................................................................... 31
B. Hostile . ............................................................................................................................ 31
C. Actual .............................................................................................................................. 32
D. Open . ............................................................................................................................... 32
E. Exclusive ......................................................................................................................... 32
F. Continuous ...................................................................................................................... 32
G. Under claim of right or color of title ............................................................................ 32
XI. DISPUTED BOUNDARIES ....................................................................................................... 33
A. Potential theories for resolving boundary disputes .................................................... 33
B. Boundary by acquiescence ............................................................................................ 33
C. Chapter 650 special actions ........................................................................................... 33
D. Boundary by written agreement ................................................................................... 34
E. Estoppel ........................................................................................................................... 34
XII. EASEMENTS .............................................................................................................................. 34
A. Nature of the interest ..................................................................................................... 34
B. Definitions ....................................................................................................................... 34
C. Methods for creating easements ................................................................................... 34
D. Easement by express grant or reservation ................................................................... 34
E. Easement by prescription .............................................................................................. 35
F. Easement by necessity ................................................................................................... 35
G. Easement by implication ............................................................................................... 35
H. Termination, release or loss of easements .................................................................... 35
XIII. COVENANTS ............................................................................................................................. 36
XIV. LAND USE AND DEVELOPMENT ......................................................................................... 36
A. Condominiums ............................................................................................................... 36
B. Cooperatives ................................................................................................................... 37
C. Divisions and Subdivisions of Land .............................................................................. 37
D. Zoning ............................................................................................................................. 38
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IOWA REAL ESTATE LAW
I. CONTRACTS TO SELL OR OTHERWISE TRANSFER REAL ESTATE
A. Residential Property Seller Disclosure Statements 1. Prior to making or accepting a written offer for the transfer of real estate containing at least
one but not more than four dwelling units, the potential transferor must deliver a written
disclosure statement to the potential transferee. Iowa Code §§ 558A.1(4) and 558A.2(1).
a. A broker or salesperson acting on behalf of the transferor may deliver the disclosure
statement instead. Iowa Code § 558A.2(1).
b. Delivery of the disclosure statement may be made via certified or registered mail or
personal delivery to the transferee. Iowa Code § 558A.2(2). Unless the parties agree
otherwise, delivery may also be made to the transferee’s spouse. Id.
c. Numerous types of transfers are excluded from the disclosure requirement including, but
not limited to, transfers by a fiduciary during the administration of an estate, trust,
guardianship or conservatorship, transfers made to a spouse, and transfers by quitclaim
deed. See Iowa Code §558A.1(4)(a)-(i).
2. The disclosure statement must include certain information “relating to the condition and
important characteristics of the property and structures located on the property, including
significant defects in the structural integrity of the structure…” Iowa Code § 558A.4. A form
Residential Property Seller Disclosure Statement is available through the Iowa State Bar
Association (Form 155) and can also be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES §§ 6:7 (2009-2010 ed.) and online at:
http://www.state.ia.us/government/com/prof/sales/PDFs/seller_disclosure.pdf. It is advisable
to use a proper form document, in order to ensure full compliance with the disclosure
requirements.
3. If the information required to be disclosed is not known or is not available to the seller, and a
reasonable effort has been made to obtain the information, an approximation based on the
best information available can be made. Iowa Code § 558A.3(1). However, the seller must
disclose that the information provided is just an approximation. Id.
4. In most cases, the seller must amend the disclosure statement if the information disclosed
becomes misleading, inaccurate or in need of supplementation. Iowa Code § 558A.3(2).
5. Failure to make the necessary disclosures pursuant to Iowa Code Chapter 558A will not
invalidate the transfer, but the transferor will be liable for any actual damages suffered by the
transferee. Iowa Code §§ 558A.6 and 558A.8. See also Hammes v. JCLB Properties, LLC,
764 N.W.2d 552 (Iowa Ct. App. 2008).
6. If the disclosure contains errors, inaccuracies or omissions, the transferor, broker or
salesperson may be held liable if they did not exercise ordinary care in obtaining the
information or had actual knowledge of the inaccuracy. Iowa Code § 558A.6(1). Proof of
fraud on the part of the seller is not required. Jensen v. Sattler, 696 N.W.2d 582, 587-88
(Iowa 2005).
7. Pursuant to EPA and HUD rules, the seller also needs to attach a lead-based paint disclosure
statement to the residential disclosure statement, in addition to providing the buyer with a
pamphlet entitled “Protect Your Family From Lead in Your Home,” if the dwelling in
question, or structures attached thereto, were built prior to 1978. 1 MARLIN M. VOLZ, JR.,
IOWA PRACTICE SERIES §6:6 (2009-2010 ed.).
8. A form lead-based paint disclosure statement is available through the Iowa State Bar
Association (Form 156) and can also be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES § 6:8 (2009-2010 ed.) or online at:
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http://www.hud.gov/offices/lead/enforcement/disclosure.cfm. The “Protect Your Family
From Lead in Your Home” pamphlet is available through HUD and can be found on the
aforementioned website as well.
B. Statute of frauds. Evidence of a contract which seeks to create or transfer an interest in land is
not admissible, unless the contract is in writing and is signed by the party charged. Iowa Code §
622.32(3). However, the statute of frauds does not bar oral evidence of the land contract when
any of the following circumstances exist:
1. The contract in question is a lease, the term of which is less than one year. Iowa Code §
622.32(3).
2. Any portion of the purchase money has been received by the seller. Iowa Code § 622.33.
3. The buyer has taken possession of the land, pursuant to the contract, with the actual or
implied consent of the seller. Iowa Code § 622.33.
4. The maker of the contract, against whom enforcement is sought, does not deny the existence
of the contract in the pleadings. Iowa Code § 622.34.
5. Oral evidence of the contract is offered by the maker of the contract and the maker is the
party charged. Iowa Code § 622.35.
6. The party seeking to enforce the contract can prove the elements of promissory estoppel.
Kolkman v. Roth, 656 N.W.2d 148, 156 (Iowa 2003)(requiring the party asserting promissory
estoppel as a defense to the statute of frauds to prove “(1) a clear and definite promise; (2) the
promise was made with the promissor’s clear understanding that the promisee was seeking
assurance upon which the promisee could rely and without which he would not act; (3) the
promisee acted to his or her substantial detriment in reasonable reliance on the promise; and
(4) injustice can be avoided only by enforcement of the promise.”).
7. The party seeking to enforce the contract partially performed under the contract. Gardner v.
Gardner, 454 N.W.2d 361, 363 (Iowa 1990)(holding that statute of frauds would not bar
evidence of oral contract where Plaintiffs had partially performed part of the contract by
conveying their remainder interest in the land).
8. “There is any other circumstance which, by the law heretofore in force, would have taken the
case out of the statute of frauds.” Iowa Code § 622.33.
C. Contents of purchase agreements
1. If the terms of the purchase agreement are not sufficiently definite and certain, the agreement
will not be unenforceable. Tri-States Inv. Co. v. Henryson, 179 N.W.2d 362, 363 (Iowa
1970).
2. At a minimum, the purchases agreement should include the following:
a. The name of the buyer(s);
b. The name of the seller(s), as the name(s) appears on the deed;
c. An accurate description of the property involved;
d. The purchase price;
e. The terms of payment of the purchase price; and
f. A statement evincing that it is the intent of the seller to sell the property and the buyer to
buy the property. See 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES § 6:3 (2009-2010
ed.).
3. Where the seller is married, the seller’s spouse should be made a party to the agreement and
sign the agreement as well, unless the spouse executes a power of attorney for such purpose.
See Iowa Code § 561.13 (relating to homesteads). Cf. Iowa Code §§ 633.211 (relating to the
intestate share of the surviving spouse) and 633.238 (relating to the surviving spouse’s
elective share).
4. The purchase agreement may, and often should, also provide information relating to, among
other things, how real estate taxes and special assessments are to be paid for the year of
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purchase, who bears the risk of loss and what sort insurance must be maintained on the
property while the sale is pending, the date possession will be delivered to the buyer,
ownership of fixtures or personalty on the property, updating of the abstract, remedies of the
parties for breach, warranties of the seller, and the manner in which title will be conveyed to
the buyer.
5. If the purchase agreement is for a residential property that was built prior to 1978, the lead-
based paint disclosure statement, discussed above, must be attached to the purchase
agreement and signed and dated by both the buyer and the seller.
6. Given the vast array of provisions that could be incorporated into the purchase agreement, it
may be advisable to review form purchase agreements, such as those available through the
Iowa State Bar Association (Forms 152, 141, 142, 143, 180 and 153) or the one found in 1
MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES § 6:32 (2009-2010 ed.), prior to drafting any
purchase agreement or offer to purchase for a client.
D. Installment contracts
1. Typically, a real estate installment contract involves a promise by the buyer to make
payments of the purchase price to the seller in two or more installments and, in exchange, the
buyer is allowed to take possession of the property before the full purchase price has been
paid. However, the seller retains legal title until the last installment payment is made by the
buyer. 17 DAVID M. ERICKSON & CHRISTOPHER TALCOTT, IOWA PRACTICE SERIES § 5:1
(2009-2010 ed.).
2. Special requirements for residential installment contracts
a. Installment contracts for the purchase of residential real estate must be recorded, by the
seller, in the county where the property is located within 90 days of signing by the buyer
and the seller. Iowa Code § 558.46(1).
i. Failure to record the installment contract within the necessary time frame is a
public offense punishable through criminal prosecution and may result in a fine
of up to $100.00 per day. State of Iowa v. Wolford Corp., 689 N.W.2d 471, 472
(Iowa 2004); Iowa Code § 558.46(2).
b. Failure to timely record does not invalidate the installment contract, but the remedy of
forfeiture is not available to the seller if the contract is not recorded. Iowa Code §
558.46(3). Forfeiture is a unique remedy for breach, which is available to installment
contract sellers under Iowa law, provided that forfeiture is specifically authorized in the
installment contract. See Section VII, below.
c. If the seller has entered into four or more residential real estate contracts within one year
of the residential installment contract in question, the seller is required to make certain
written disclosures (e.g. the amount of any real estate taxes or special assessments due on
the real estate, a complete description of any mortgages or other liens encumbering the
real estate, the mailing address of each party to the contract) to the buyer prior to
execution of the contract, which must be dated and signed by each party to the contract.
A form disclosure statement is available through the Iowa State Bar Association (Form
338). The seller also must provide a complete copy of the contract with the written
disclosures and then mail a complete copy of the contract to the buyer within 5 days of
execution of the contract. Iowa Code § 558.70.
i. The written disclosures required of sellers falling into this category are separate
and distinct from the Residential Property Seller Disclosure Statement required
by Iowa Code Chapter 558A.
ii. For sellers falling into this category, the installment contract must be recorded
within 30 days, rather than 90 days. Iowa Code § 558.46(7).
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iii. Certain entities, such as banks and licensed real estate brokers while engaged in
practice, are exempted from these disclosure requirements. Iowa Code §
558.70(4).
E. Caveat emptor (“Let the buyer beware”)
1. Historically, the doctrine of caveat emptor has “precluded buyers of real estate from
recovering damages in many cases [where there were problems with the property subsequent
to the purchase] as it was up to the purchaser to ‘examine, judge, and test if for himself, being
bound to discover any obvious defects.’” Arthur v. Brick, 565 N.W.2d 623, 625 (Iowa Ct.
App. 1997)(quoting, in part, Swanson v. Baldwin, 85 N.W.2d 576, 578, 249 Iowa 19, 22
(1957)).
2. While the doctrine of caveat emptor has not been abolished in Iowa, and property inspections
by the buyer remain an important step in the decision to purchase, the doctrine has been
somewhat weakened over the years, particularly as it applies to builders of residential
housing. See Iowa Code Chapter 558A (imposing liability on sellers who fail to disclose
certain defects); Arthur v. Brick, 565 N.W.2d 623, 625 (Iowa Ct. App. 1997)(discussing the
showing that must be made in order for a purchaser to recover based on a claim of fraudulent
misrepresentation); Speight v. Walters Dev, Co., Ltd., 744 N.W.2d 108, 114 (Iowa
2008)(extending the availability of a claim for breach of implied warranty of workmanlike
construction against the builder of a home to subsequent purchasers); Randa v. U.S. Homes,
Inc., 325 N.W.2d 905 (Iowa Ct. App. 1982)(holding the trial court did not err in submitting
Plaintiff’s intentional infliction of emotional distress claim against manufacturer of prebuilt
home to the jury).
3. In addition to property inspections by the buyer, it may also be advisable to request express
warranties from the seller if there are concerns relating to the property.
F. Equitable conversion
1. “[A] contract for the purchase of real estate works as an equitable conversion. The contract
vendee becomes the equitable owner; the contract vendor holds title as trustee for his
purchaser.” Fellmer v. Gruber, 261 N.W.2d 173, 174 (Iowa 1978).
2. Therefore, unless the parties agree otherwise, the risk of loss is on the purchaser once the
contract is executed, even if the seller remains in possession. Rector v. Alcorn, 241 N.W.2d
196, 200 (Iowa 1976). However, if the property is destroyed due to the fault of one of the
parties, the party at fault is liable for the loss, regardless of which party bore the risk of loss.
See Id.
II. EXAMINING ABSTRACTS AND CURING TITLE DEFECTS
A. Examination of abstracts
1. Typically, the contract to purchase or sell land will require the seller to provide the buyer
with an abstract of title that has been properly continued (brought up to date). If the contract
does not so provide, the seller is not obligated to continue the abstract or to provide it to the
buyer.
2. The abstract contains a summary of filed or recorded documents affecting title to the
property, allowing the buyer, or the buyer’s attorney, to determine the condition of the
seller’s title in a timely and efficient manner.
3. The abstract should also contain a certification from the abstractor. The abstractor’s
certificate typically shows the date through which the abstract has been continued.
4. The process used to examine the abstract varies depending on the particular attorney.
However, regardless of the process used, the examining attorney should bear in mind that
“[t]he purpose of the examination of title should be to secure a title for the examiner’s client
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which is in fact marketable and which is shown by the record to be marketable, subject to no
encumbrances other than those expressly provided for by the client’s contract. Objections
and requirements should be made only when the irregularities or defects can reasonably be
expected to expose the purchaser or lender to the hazard of adverse claims or litigation. The
mere base possibility or remote probability that there may be litigation with respect to the title
is not sufficient to render it unmarketable.” Iowa Land Title Standard 1.1. For a description
of the process used by one attorney, see 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES §
1:4 et seq. (2009-2010 ed.).
5. Once the buyer’s attorney has examined the abstract, he or she will typically write a
preliminary title opinion, reporting the attorney’s findings from the abstract examination and
rendering an opinion as to the state of the title and what steps should be taken to correct any
defects in title.
a. If the buyer is taking out a mortgage on the property to finance the purchase, the lender
will typically require a preliminary title opinion addressed to the lender.
b. A final title opinion is usually prepared by the buyer’s attorney after any defects in title
have been corrected and the abstract has been re-continued subsequent to the closing.
The re-continued abstract typically shows the recording of the deed conveying the
property to the buyer, the buyer’s mortgage (if any), and other title corrective
documentation.
6. Attorneys may differ as to the specific information that they include in the title opinion but, in
general, the following information is, and should be, included:
a. An accurate legal description of the property covered by the title opinion;
b. A statement regarding the date through which the abstract is certified by the abstractor
and the number of entries contained in the abstract;
c. The opinion of the attorney as to the party or parties currently holding title to the
property, based on the attorney’s examination of the abstract;
d. A statement of all defects or objections including, but not limited to, unreleased
mortgages, unpaid taxes, and other unreleased liens reflected on the abstract; and
e. Information regarding special restrictions on the use and enjoyment of the property, such
as restrictive covenants, easements, or local zoning.
7. The abstract does not show the following items and, therefore, the attorney may want to
advise in the preliminary title opinion that the buyer make independent inspection of these
items:
a. Rights of parties in possession;
b. Easements existing by virtue of use;
c. Location of boundary lines;
d. Location of fence lines;
e. Unpaid sewage disposal bills;
f. Any labor or materials furnished the premises within the last 90 days and still unpaid, as
this would be the subject of a lien without being shown on record;
g. Special assessments adopted by a municipality or county which have not been certified to
the County Auditor;
h. Pendency of any action under the Iowa Dissolution of Marriage laws, which files are
sealed by law;
i. Financing statements under the Uniform Commercial Code of Iowa and covering fixtures
located upon the real estate; and
j. Environmental audits or reports.
8. Since abstracts can be rather expensive to replace, a record should be kept regarding who has
possession of the abstract at all times.
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B. Iowa Land Title Standards
1. The Iowa Land Title Standards are a set of standards meant to assist attorneys in examining
abstracts and promote consistency among attorneys in Iowa. IOWA LAND TITLE STANDARDS,
PREFACE.
2. The Title Standards were prepared and continue to be updated by a committee appointed by
the Iowa State Bar Association and are available on the Iowa State Bar Association’s website
at http://iabar.net/. The Title Standards cover a wide variety of topics, are presented in a
question and answer format and include citations to authorities supporting the answer
provided in the Title Standard.
3. By way of example, Title Standard 9.1 asks: “When a will vests the executor with
unrestricted power to sell real estate, is an order of court necessary either in connection with
the sale or the execution of the executor’s deed?” The answer provided is “No” and the
authority cited for said answer is Iowa Code section 633.383. Title Standard 9.1 also
includes a comment which reads “[t]his is true whether the power is mandatory or merely
discretionary.”
C. Marketable Title Acts.
1. The ability to preserve an interest that is a cloud on title to land in Iowa is limited by the
Marketable Title Acts. 17 DAVID M. ERICKSON & CHRISTOPHER TALCOTT, IOWA PRACTICE
SERIES §1:1 (2009-2010 ed.).
2. An understanding of the Marketable Title Acts is important when examining abstracts. The
Title Standards contain two chapters covering various Marketable Title Act issues and
questions. See IOWA LAND TITLE STANDARDS, CHAPTERS 10 & 11.
3. 10-year Marketable Title Acts
a. Pre-1980 claims. An action claiming an interest in real estate that is adverse to the
holder of record title to the property, which is based on a claim that arose or existed prior
to January 1, 1980, is barred if:
i. The holder of record title is in possession of the property;
ii. The holder of record title or his or her immediate or remote grantors have held
the chain of title since January 1, 1980; and
iii. The claimant or an appropriate agent of the claimant did not file a proper written
statement of his or her claim within 1 year of July 1, 1991. Iowa Code § 614.17.
b. Post-1992 actions. After July 1, 1992, an action to establish or recover a claim to or
interest in real estate is barred if:
i. The claim upon which the action is based arose more than 10 years earlier or has
existed for more than ten years;
ii. The action is against the record titleholder who is in possession of the property;
iii. The record titleholder or his or her immediate or remote grantors have held chain
of title to the property for more than 10 years; and
iv. The claimant or an appropriate agent of the claimant failed to file proper written
statement of his or her claim within 10 years of the date on which the claim
arose. Iowa Code § 614.17A. If the written statement of claim is filed, the
deadline for filing an action is extended for 10 years, with an option to file
additional extensions. Iowa Code § 614.17A.
c. Possession by the record titleholder.
i. For both pre-1980 claims and post-1992 actions, the requisite possession of the
real estate by the record titleholder may be shown by the filing of an affidavit of
possession by the record titleholder. Iowa Code § 614.17(3). A form affidavit of
possession is available from the Iowa State Bar Association (Form 154).
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ii. “There need not be any continuity of possession for the holder of record title so
long as he or she is actually in possession at the time the affidavit is filed.”
Schroeder v. Buegel, 371 N.W.2d 178, 179 (Iowa Ct. App. 1985).
d. Minors and persons with mental illness. Minors and person with mental illness do not
receive the usual extension of the statute of limitations where the 10-year Marketable
Title Acts are involved. Iowa Code § 614.19.
e. Foreclosure of ancient mortgages. i. “No action shall be maintained to foreclose or enforce any real estate mortgage,
bond for deed, trust deed, or contract for the sale or conveyance of real estate,
after twenty years from the date thereof, as shown by the record of such
instrument, unless the record of such instrument shows that less than ten years
have elapsed since the date of maturity of the indebtedness or part thereof,
secured thereby, or since the right of action has accrued thereon, or unless the
record shows an extension of the maturity of the instrument or of the debt or a
part thereof, and that ten years from the expiration of the time of such extension
have not yet expired.” Iowa Code § 614.21.
ii. If mortgage or other instrument is not recorded, but is described or referred to in
an instrument that is recorded, the limitation period is reduced to 10 years. Iowa
Code § 614.21. The 10-year limitation runs either from the:
a) due date of the unrecorded mortgage or other instrument if said due date can
be found in the record; or
b) date that the instrument which refers to the unrecorded mortgage or other
instrument was recorded. Id.
f. Actions affecting ancient deeds. i. In general, actions to attack a tax deed, guardian’s deed, administrator’s deed,
executor’s deed, referee’s deed, assignee’s deed, receiver’s deed or sheriff’s deed
are barred if not brought within 10 years of the filing of the deed, without
exception for mental illness, disability, infancy or other cause, so long as the
property described in the deed is in the possession of the party claiming title
under the deed. Iowa Code § 614.22.
ii. An affidavit of possession may be filed to show the requisite possession. Iowa
Code § 614.23.
g. Actions based on the failure of a spouse to sign a deed. i. Pre-1981 claims.
a) An action to claim the interest of a spouse in real estate, where the spouse did
not join in the deed for a conveyance that was prior to July 1, 1981, is barred
if suit for recovery was not brought within 1 year after July 1, 1991. Iowa
Code § 614.15(1). However, where the conveying spouse was not deceased
and the distributive share had not accrued, the nonjoining spouse had until 2
years from July 1, 1991, to file a notice of claim to preserve the spouse’s
claim. Id.
ii. Post-1981 claims.
b) An action to claim the interest of a spouse in real estate, where the spouse did
not join in the deed for a conveyance that was after July 1, 1981, is barred if
suit for recovery is not brought within 10 years of the conveyance. Iowa
Code § 614.15(2).
1) However, where the conveying spouse is not deceased and the
distributive share has not accrued, the nonjoining spouse has 10 years
from the date of the conveyance to file a notice of claim to preserve the
spouse’s claim. Id.
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2) If proper notice of claim is filed, the limitations period is extended 10
years and additional notices may be filed to further extend the period. Id.
4. Stale Uses and Reversions Act
a. Actions against the holder of record title, which are based on a reversionary interest,
reverted interest or an interest in use, are barred if:
i. The record title holder is in possession of the property;
ii. 21 years have passed since the recording of the deed or contract which created
the interest or since the will reserving or providing for the interest was admitted
to probate; and
iii. The claimant did not file a proper verified claim within the 21 year period. Iowa
Code § 614.24(1).1
b. The requirement of filing a verified claim does not apply to certain reversions of railroad
property. Iowa Code § 614.24(2).
c. The filing of a proper verified claim extends the limitation period for 21 years and
additional extensions may be filed thereafter. Iowa Code § 614.25.
d. As with the 10-year Marketable Title Acts, minors and person with mental illness do not
receive the usual extension of the statute of limitations when the Stale Uses and
Reversions Act applies. Iowa Code § 614.27.
5. 40-year Marketable Record Title Act
a. A person is deemed to have marketable record title to an interest in land, subject to
certain interests and rights (immediately below), if the person has had an unbroken chain
of title of record to said interest in the land for at least 40 years. Iowa Code § 614.31.
The “certain interests and rights” to which the person’s interest in land is subject include:
i. The rights of any person arising from a period of adverse possession or user,
which was in whole or in part subsequent to the recording of the root of title;
ii. Any interest or defect which is inherent in the muniments of title;
iii. Any interest preserved pursuant to Iowa Code section 614.34;
iv. Any interest created by an environmental covenant established pursuant to the
Uniform Environmental Covenants Act (Iowa Code Chapter 455I);
v. Any interest of a lessor or his or her successor as a reversioner of the right to
possession at the expiration of a lease;
vi. Any easement or interest in the nature of an easement, the existence of which is
apparent from or can be proved by physical evidence of its use;
vii. Any interest arising out of a title transaction that was recorded after the root of
title, provided however that such recording will not revive or give validity to any
interest extinguished prior to the root of title; and
viii. Any interest of the United States. Iowa Code § 614.32.
b. Iowa Code section 614.34 provides that a person claiming an interest in land may
preserve their interest by filing a proper verified notice of their claim within the 40-year
period. The 40-year period is not tolled by disability or lack of knowledge, but the notice
may be filed by a party acting on behalf of the disabled party or one who is unable to
assert the claim on their own behalf or a member of a class that is uncertain. Iowa Code
§ 614.24(1).
c. Iowa Code Section 614.34 further provides that “[i]f the same record owner of any
possessory interest in land has been in possession of such land continuously for a period
of forty years or more, during which period no title transaction with respect to such
interest appears of record in the chain of title, and no notice [of claim] has been
1 However, if the deed creating the interest was recorded, or the will was admitted to probate, more than
20 years prior to July 4, 1965, the claim may have been filed within one year of July 4, 1965. Iowa Code § 614.24(1).
9
filed…and such possession continues to the time when marketability is being determined,
such period of possession shall be deemed equivalent to the filing of the notice
immediately preceding the termination of the forty-year period.”
d. The 40-year Marketable Record Title Act explicitly provides that it is to “be liberally
construed to effect the legislative purpose of simplifying and facilitating land title
transactions by allowing persons to rely on a record chain of title as described in section
614.31, subject only to such limitations as appear in section 614.32.” Iowa Code §
614.30.
D. Title Guaranty
1. The sale of private title insurance in not permitted in Iowa. Iowa Code § 515.48.
2. Consequently, the Iowa Legislature created Title Guaranty, a division of Iowa Finance
Authority, “to operate a program that offers guaranties of real property titles in order to
provide, as an adjunct to the abstract-attorney’s title opinion system, a low-cost mechanism to
facilitate mortgage lenders’ participation in the secondary market and add to the integrity of
the land-title transfer system in the state.” Iowa Admin. Code § 265-9.3(16).
3. Title Guaranty provides a manual containing a wealth of information about the program,
which can be found at:
http://www.iowafinanceauthority.gov/en/title_guaranty_division/forms_documents/
4. Prior to the issuance of a title guaranty, the abstract to the property for which the guarantee is
sought must be brought up to date and certified by an abstractor participating in the title
guaranty program and an attorney participating in the program (“participating attorney”) must
render a title opinion. Iowa Code § 16.91(6).
5. Participating Attorneys. In order to qualify as a participating attorney, the attorney must
sign an Attorney Participation Agreement, pay an annual renewal fee of $25.00 and complete
an annual questionnaire. TITLE GUARANTY MANUAL, ARTICLE I, SECTION 1.01. As part of
the Attorney Participation Agreement, the attorney agrees to “examine real estate titles in
accordance with the most recent Iowa Land Title Examination Standards of the Iowa Bar
Association, where applicable” and that any title opinion issued by the attorney can be relied
upon by Title Guaranty in issuing guarantees as to the property. Id.
6. Services offered by Title Guaranty:
a. Commitments. A commitment is a written promise from Title Guaranty that it will issue
a Title Guaranty certificate once any required premium is paid and any requirements for
ensuring title is marketable are met, subject to certain conditions. TITLE GUARANTY
MANUAL, ARTICLE II, SECTION 2.01. The commitment is issued at or around the time of
the preliminary title opinion, if at all. 17 DAVID M. ERICKSON & CHRISTOPHER
TALCOTT, IOWA PRACTICE SERIES §7:8 (2009-2010 ed.).
b. Owner’s Certificates.
i. Subject to the exclusions, exceptions and conditions listed in the certificate, a
Title Guaranty Owner’s Certificate protects the property owner against risks
including, but not limited to:
a) Unmarketable title;
b) Title being vested in a third party;
c) Defects in or liens or encumbrances on title; and
d) A lack of right of access to the property. TITLE GUARANTY MANUAL,
ARTICLE III, SECTION 3.04.
ii. The Title Guaranty Owner’s Certificate also guarantees that Title Guaranty will
pay attorney’s fees and other costs and expenses incurred in defending a
guaranteed matter, subject to certain conditions. TITLE GUARANTY MANUAL,
ARTICLE III, SECTION 3.04.
c. Lender’s Certificates.
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i. Subject to the exclusions, exceptions and conditions listed in the certificate, a
Title Guaranty Lender’s Certificate protects the lender against the same risks that
are covered by an Owner’s Certificate, in addition to guaranteeing against
invalidity or unenforceability of the mortgage lien or lack of priority over other
liens, among other things. TITLE GUARANTY MANUAL, ARTICLE III, SECTION
3.01.
ii. The Title Guaranty Lender’s Certificate also guarantees that Title Guaranty will
pay attorney’s fees and other costs and expenses incurred in defending a
guaranteed matter, subject to certain conditions. TITLE GUARANTY MANUAL,
ARTICLE III, SECTION 3.01.
d. Endorsements. The coverage provided by an Owner’s Certificate or a Lender’s
Certificate may be modified by an Endorsement. TITLE GUARANTY MANUAL, ARTICLE
IV.
e. Rapid Certificates. If the necessary conditions are met, a Title Guaranty Certificate may
be issued through the Rapid Certification Program before a paid mortgage has actually
been released of record. TITLE GUARANTY MANUAL, ARTICLE I, SECTION 1.01. If a
Rapid Certificate is issued and the paid but unreleased mortgage is not paid within 4
months of the closing of the guaranteed mortgage, the participating attorney or other
party responsible for issuing the Rapid Certificate is required to apply to Title Guaranty
for a release of the mortgage. See TITLE GUARANTY MANUAL, ARTICLE I, SECTION 1.01.
f. Closing Protection Letters. Title Guaranty “may issue a closing protection letter to a
person to whom a proposed title guarantee is to be issued, upon the request of the person,
if the division issues a commitment for title guaranty or title guarantee certificate. The
closing protection letter … may indemnify a person to whom a proposed title guaranty is
to be issued against loss of settlement funds due to only the following actions of the
division’s named participating attorney, participating abstractor, or closer:
i. Theft of settlement funds.
ii. Failure by the participating attorney, participating abstractor, or closer to comply
with written closing instructions of the person to whom a proposed title guaranty
is to be issued relating to title certificate coverage when agreed to by the
participating attorney, participating abstractor, or closer.” Iowa Code § 16.93.
iii. The Closing Protection Letter is only available if the participating attorney,
participating abstractor or closer is an authorized “division closer.” See Iowa
Admin. Code § 265-9.6(8).
g. Mortgage release certificates. If the final payment on a mortgage is made in accordance
with a payoff statement, and 30 days have elapsed since said payment and no mortgage
release has been filed, the lender or closer may request a mortgage release certificate
from Title Guaranty. Iowa Code § 16.92(2).
i. At least 30 days prior to executing any certificate of release, Title Guaranty must
send a written notice of its intent to issue a certificate of release to the mortgage
servicer. Iowa Code § 16.92(2).
ii. Mortgage release certificates are only available if the original principal amount
of the mortgage, including any future advances, is equal to or less than a certain
amount. Iowa Code § 16.92(8); Iowa Admin. Code § 265-9.9(1).
7. Claims. If an attorney or abstractor receives notice of a claim of potential loss or damage
that might be covered by any of the Title Guaranty services listed immediately above, or for
which Title Guaranty may be liable, the attorney abstractor must provide written notification
of such claim to Title Guaranty within three business days, or possibly sooner. Iowa Admin.
Code § 265-9.11(2). Depending on the circumstances, the attorney may or may not have to
reimburse Title Guaranty for any losses paid on the claim by Title Guaranty. See Iowa
Admin. Code § 9.11(3).
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E. Curing title defects
1. The seller is typically responsible for curing any defects in title identified in the preliminary
title opinion of the buyer’s attorney.
2. Defects cured by affidavit. “Affidavits explaining any defect in the chain of title to any real
estate may be recorded as instruments affecting the same, but no one except the owner in
possession of such real estate shall have the right to file such affidavit. Such affidavit or the
record thereof, including all such affidavits now of record, shall raise a presumption from the
date of recording that the purported facts stated therein are true; after the lapse of three years
from the date of such recording, such presumption shall be conclusive.” Iowa Code § 558.8.
a. An affidavit may be used to clarify an ambiguous matter in the record or to set out facts
showing that a party who appears to have an interest in the property, or used to have an
interest, does not actually have any such interest. 1 MARLIN M. VOLZ, JR., IOWA
PRACTICE SERIES § 2:2 (2009-2010 ed.). However, the affidavit “cannot be used to cut
off an existing interest of record in another person.” Id.
b. “Affidavits or recitals should be made by persons competent to testify in court, state facts
rather than conclusions and disclose the basis of the maker’s knowledge. The value of an
affidavit or recital is not necessarily diminished by the fact that the maker is interested in
the title or the subject matter of the affidavit or recital. However, the examiner should
consider the maker’s knowledge and interest in the transaction.” IOWA LAND TITLE
STANDARD 8.8.
3. Examples of curative affidavits.
a. Affidavit of identity. The Affidavit of identity can be used to correct defects such as:
i. Name variations, such as where a person takes title as a single person but later
conveys using their married named, without a recital in the conveyance as to their
former name. See IOWA LAND TITLE STANDARD 8.4; 1 MARLIN M. VOLZ, JR.,
IOWA PRACTICE SERIES § 2:31 (2009-2010 ed.).
a) If an actual correction to the name rather than a mere clarification is needed,
a quit claim deed should be used instead of an affidavit. 1 MARLIN M. VOLZ,
JR., IOWA PRACTICE SERIES § 2:15 (2009-2010 ed.).
ii. An ambiguity arising from identical names, as where the record reflects a
judgment against Tom Thompson, but it is not the same Tom Thompson who is
involved in the real estate transaction in question. See 1 MARLIN M. VOLZ, JR.,
IOWA PRACTICE SERIES § 2:23 (2009-2010 ed.).
b. Affidavit of no interest. Stray deeds between persons having no apparent interest in the
property may be corrected by obtaining an affidavit or disclaimer from the grantee in the
stray deed, stating that they have no interest in the property. IOWA LAND TITLE
STANDARD 4.5
i. A corrective deed, stating the true facts and that the description in the prior deed
was in error, may also be used in this situation. Id.
c. Affidavit as to homestead. Where one spouse did not join in the granting clause of a
deed by a husband and wife, and the deed contains a release of dower but not a release of
homestead, and the defect cannot be cured by operation of Iowa Code section 614.15, the
defect can be cured by obtaining an affidavit stating that the property was not occupied
by the husband and wife as a homestead on the date of execution and delivery of the
deed. IOWA LAND TITLE STANDARD 5.5.
d. Affidavit of death terminating life estate. See Iowa State Bar Association Form 179
(2005).
e. Affidavit of certain surviving of joint tenants for change of title to real estate. See Iowa
State Bar Association Form 339 (2006).
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f. Affidavit of surviving spouse for change of title to real estate held in joint tenancy. See
Iowa Code § 558.66.
4. Defects cured by quit claim deed. A quit claim deed can also be used to cure a variety of
defects including, but not limited to, defects arising from one of “the following instances:
a. Where one of several owners does not join in a conveyance.
b. Where one of the spouses has not joined in a conveyance and the property is not a
homestead…
c. Where there has been a jurisdictional defect in a foreclosure or a quiet title action as to a
person with an interest.
d. Where there is a doubtful conveyance by a conservator, or where a minor was not
represented in a court proceeding by a guardian ad litem, and the minor has since reached
majority.
e. Where there is a questionable administrator's or executor's deed, and the heirs or devisees
have been determined.
f. Where there is an outstanding interest in a contract for a deed or real estate contract.
g. Where there is an outstanding life estate.
h. Where there are contingent remaindermen.
i. Where there is an unexpired option or a lease with an option.
j. Where there is an outstanding lease.
k. Where there are doubtful tax sale proceedings.
l. Where the divorce decree does not vest title in one of the parties...” 1 MARLIN M. VOLZ,
JR., IOWA PRACTICE SERIES § 2:13 (2009-2010 ed.).
A quit claim deed may also be used to release an easement or similar interest. Id. at § 2:16.
5. Defects cured by operation of law. Certain defects in title may be cured by operation of
Iowa’s Marketable Title Act, described above, or a legalizing act adopted by the Iowa
General Assembly. The majority of said legalizing acts can be found in Volume VI, Title
XIV, Subtitle 4 of the Code of Iowa and a comprehensive list of legalizing acts is contained
in Volume 38 of the Iowa Code Annotated (1992). For example, one such legalizing act
provides that acknowledgements taken by notaries outside of their jurisdiction are legalized
and declared valid if more than ten years have passed since the taking of the
acknowledgment. Iowa Code § 586.1(2).
III. MECHANIC’S LIENS
A. Persons entitled to a mechanic’s lien. “Every person who shall furnish any material or labor
for, or perform any labor upon, any building or land for improvement, alteration, or repair
thereof, including those engaged in the construction or repair of any work of internal or external
improvement, and those engaged in grading, sodding, installing nursery stock, landscaping,
sidewalk building, fencing on any land or lot, by virtue of any contract with the owner, contractor
or subcontractor shall have a lien upon such building or improvement, and land belonging to the
owner on which the same is situated or upon the land or lot so graded, landscaped, fenced, or
otherwise improved, altered, or repaired, to secure payment for the material or labor furnished or
labor performed.” Iowa Code § 572.2(1).
1. The required contract with the owner, contractor or subcontractor may be express or implied.
A & W Elec. Contractors, Inc. v. Petry, 576 N.W.2d 112, 114 (Iowa 1998).
2. The contract must be substantially complied with by the party seeking the mechanic’s lien or
the mechanic’s lien will not be enforceable. Bidwell v. Midwest Solariums, Inc., 543 N.W.2d
293, 295 (Iowa Ct. App. 1995).
3. The definition of “material” provided in Iowa Code § 572.1(3) is broad and various items not
expressly listed in the statute may be lienable if they are provided for in the contract. See
Crane Co. v. Westerman, 233 Iowa 1394, 1397-98, 8. N.W.2d 412, 413-14 (Iowa
13
1943)(allowing lien to include mileage, lodging and board where contract provided that
payment was to include these items). But see Farmers Co-op Co. v. DeCoster, 528 N.W.2d
536, 539 (Iowa 1995)(holding that gasoline, diesel and petroleum are not lienable items under
the mechanic’s lien statute).
4. A person who rents materials to the owner, contractor or subcontractor is also entitled to a
mechanic’s lien for the reasonable rental value during any period of actual use and any
reasonable period of nonuse taken into account in the rental agreement. Iowa Code §
572.2(2).
5. There can be no valid mechanic’s lien if no improvement was made to the land. Gollehon,
Schemmer & Assoc., Inc. v. Fairway-Bettendorf Assoc., 268 N.W.2d 200, 201 (Iowa
1978)(holding architect’s lien was invalid where architect’s services were not used past the
planning stage, due to abandonment of project).
6. If collateral security was taken by a party at the time of making the contract or during the
progress of the work, that party will not be entitled to a mechanic’s lien. Iowa Code § 572.3.
But see Iowa Code § 572.4 (providing that, unless expressly agreed otherwise, the taking of
security after completion of the work does not affect the right to establish a mechanic’s lien).
B. Perfection of the mechanic’s lien
1. The mechanic’s lien must be perfected before any action can be brought to enforce the lien.
Iowa Code § 572.24.
2. A mechanic’s lien is perfected by posting a notice to the Secretary of State’s Mechanics’
Notice and Lien Registry website (effective January 1, 2013), along with a verified statement
of account of the demand due, after allowing all credits. Iowa Code § 572.8(1). Said
statement must set forth the following:
a. The dates on which the material or labor was first and last furnished;
b. The legal description of the property to be charged with the lien;
c. The name and last known mailing address of the property owner;
d. The address of the property; and
e. The tax parcel identification number. Id.
3. Upon posting of the lien, the Secretary of State will mail a copy of the lien to the owner. Iowa
Code § 572.8(2).
4. A form of the required verified statement is available through the Iowa State Bar Association
(Form 137) and can also be found in 3 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES §
34:25 (2009-2010 ed.).
5. A general contractor is required to send an “Owner Notice” to the owner of the property if the
general contractor has or will contract with a subcontractor to provide labor or furnish
material for the property. Iowa Code § 572.13(1). This can be included in the building
contract or sent in a separate letter.
a. The “Owner Notice” requires the following specific language to be included:
“Persons or companies furnishing labor or materials for the improvement
of real property may enforce a lien upon the improved property if they are
not paid for their contributions, even if the parties have no direct
contractual relationship with the owner. The mechanics’ notice and lien
registry provides a listing of all persons or companies furnishing labor or
materials who have posted a lien or who may post a lien upon the improved
property.”
Iowa Code § 572.13(1).
b. The notice shall also contain the internet website address and the toll-free telephone
number of the Mechanics’ Notice and Lien Registry. Iowa Code § 572.13(2).
6. A general contractor is also required to post a “Commencement of Work Notice” on the
Secretary of State’s Mechanic’s Notice and Lien Registry website within ten days of starting
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work. Iowa Code § 572.13A(1). This notice is only effective as to any labor performed or
material provided after the posting has been made. Id. The Secretary of State will send a copy
of the “Commencement of Work Notice” to the owner. Iowa Code § 572.13A(3)(a).
7. In order to preserve the right to a lien upon an improved property, a subcontractor must post a
“Preliminary Notice” to the Mechanics’ Notice and Lien Registry website. Iowa Code §
572.13B(1). The subcontractor should post the notice within 90 days from the last day on
which labor was performed or material was provided. However, as long as the notice is
posted before the balance due to the general contractor has been paid, the notice is effective
as to all labor performed and materials provided to the property by the subcontractor. Id.
a. Upon the posting of the “Preliminary Notice” to the website, the Secretary of State
will send a notification to the owner. Iowa Code § 572.13B(2).
b. The subcontractor has the burden of proving whether or not the owner actually received
the notice. Upon request, the Secretary of State will provide an affidavit of mailing at no
cost. Iowa Code § 572.13B(3)(b)(1).
8. A principal contractor or subcontractor has two years and 90 days after the date on which the
last labor or material was furnished in order to perfect its lien. Iowa Code § 572.9. However,
in order to avoid additional restraints and limitations on the mechanic’s lien, and preserve any
priority to which the lien may be entitled, the lien should be perfected within 90 days of the
furnishing of the last labor or material. See Iowa Code §§ 572.10; 572.11; 572.14; 572.17;
572.18 and 572.20. Examples of additional restraints and limitations imposed for failing to
perfect the lien within 90 days include, but are not limited to, the following:
a. If the lien is not perfected within the initial 90 days, the claimant is required to give
written notice of the claim to the property owner, served in the manner original notices
are required to be served, in addition to filing the claim with the Clerk of Court. Iowa
Code § 572.10.
b. If the lien is not perfected within the initial 90 days, a subcontractor’s mechanic’s lien
will generally be limited to the balance still owed by the property owner to the primary
contractor on the date of service of the written notice of the claim on the owner. Iowa
Code § 572.11.
C. Priority of the mechanic’s lien
1. As between mechanic’s liens, priority is determined in the order of the filing of the verified
statements of account required to perfect a mechanic’s lien. Iowa Code § 572.17.
2. If the mechanic’s lien is perfected within the initial 90 days, the mechanic’s lien is “superior
to all other liens which may attach to or upon a building or improvement and to the land upon
which it is situated, except liens of record prior to the time of the original commencement of
the claimant’s work or the claimant’s improvements” and construction mortgage liens
recorded prior to the commencement of the claimant’s particular work or improvement. Iowa
Code § 572.18(1) & (2).
3. If the mechanic’s lien is not perfected within the initial 90 days, the mechanic’s lien is
inferior to the rights of subsequent good faith purchasers and encumbrancers for value
without notice of perfection of the mechanic’s lien. Iowa Code § 572.18(3).
4. Mechanic’s liens have priority over all garnishments of the owner for contract debts. Iowa
Code § 572.19.
5. Except as provided in Iowa Code sections 572.10 and 572.11, a mechanic’s lien attaches to
the building or improvement for which the labor or material was furnished or done, in
preference to any prior liens, encumbrances or mortgages on the land upon which the
building or improvement is situated or was erected. Iowa Code § 572.20. See also Iowa
Code § 572.21 (relating to foreclosure of mechanic’s liens when there is a superior lien,
encumbrance or mortgage upon the land).
15
6. County tax liens have priority over mechanic’s liens. Barker’s Inc. v. B.D.J. Dev. Co., 308
N.W.2d 78, 83 (Iowa 1981).
D. Special limitations on mechanic’s liens
1. Multiple unit cooperative or condominium housing. When seeking to enforce a lien against a
good faith purchaser of an owner-occupied unit in a multiple unit cooperative or
condominium, the verified statement of account that is filed to perfect the mechanic’s lien
must specifically describe the particular unit in order to be enforceable. Iowa Code § 572.31.
2. Owner-occupied dwellings. Where the contract involves an owner-occupied dwelling, the
original contractor is required to give certain notices to the owner if the original contractor
uses subcontractors. See Iowa Code § 572.13(2). Other claimants for labor or materials
furnished for or upon an owner-occupied dwelling also need to give the owner a particular
notice. See Iowa Code § 572.14(3). Furthermore, unless otherwise agreed, a principal
contractor who uses subcontractors on an owner-occupied dwelling is required to pay the
subcontractors in full within 30 days of receiving full payment from the owner. Iowa Code §
572.30.
3. Sub-subcontractors. A person furnishing labor or material to a subcontractor is not entitled to
a mechanic’s lien unless that person does both of the following.
a. Provides the principal contractor with a one-time written notice, within 30 days of first
furnishing the labor or materials, stating:
i. The name, mailing address and telephone number of the person furnishing the
labor or materials and
ii. The name of the subcontractor to whom the labor or materials were furnished.
b. Supports the claim for a mechanic’s lien with a certified statement that the principal
contractor was given the required notice within 30 days of first furnishing the labor or
materials. Iowa Code § 572.33.
E. Discharge of the mechanic’s lien
The owner, principal contractor or intermediate subcontractor may discharge the mechanic’s lien
at any time by filing a bond with the Clerk of Court in the proper county, which is twice the
amount of the mechanic’s lien, with sureties approved by the Clerk, conditioned for the payment
of any judgment upon the claim. Iowa Code § 572.15.
F. Actions to enforce or challenge the mechanic’s lien
1. An action to enforce a mechanic’s lien, or upon the bond given in lieu thereof, may be
brought once the lien has been perfected. Iowa Code § 572.24.
2. The action to enforce the mechanic’s lien must be brought in the county in which all or part
of the property affected by the lien is located. Iowa Code § 572.25.
3. There is a two year statute of limitations for bringing an action to enforce the mechanic’s lien,
which begins to run 90 days after the date on which the last of the material is furnished or the
last of the labor is performed. Iowa Code § 572.27.
a. However, if the property owner serves a written demand on the lienholder requiring the
lienholder to commence an action to enforce the mechanic’s lien, the action to enforce
the mechanic’s lien must be commenced within 30 days or the lien is forfeited. Iowa
Code §572.28.
4. The action to enforce the mechanic’s lien is tried in equity and joinder of other causes of
action is not permitted. Iowa Code § 572.26. However, when the action is an action to
challenge a mechanic’s lien, permissible claims and counterclaims may be joined in the
action. Iowa Code § 572.24(2).
5. A form of the Petition in Equity can be found in 3 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES § 34:26 (2009-2010 ed.). The owner, all parties in possession of the property and all
16
other parties who claim an interest in the property should be named as defendants in the
action to enforce the mechanic’s lien and must be served with original notice as provided in
the Iowa Rules of Civil Procedure.
6. The Plaintiff’s remedy in an action to enforce a mechanic’s lien is foreclosure and sale of the
premises.
7. Attorney fees:
a. If the Plaintiff in an action to enforce a mechanic’s lien furnished labor or materials
directly to the Defendant, the Plaintiff may be awarded reasonable attorney fees if the
Plaintiff prevails in the action. Iowa Code § 572.32(1).
b. If the mechanic’s lien was filed on an owner-occupied dwelling, the Plaintiff in an action
challenging the mechanic’s lien may be awarded reasonable attorney fees and actual
damages if the Plaintiff prevails in the challenge. Iowa Code § 572.32(2). The owner
will also be entitled to an amount not less than $500.00 or the amount of the lien,
whichever is less, if the court finds that the mechanic’s lien was filed in bad faith or the
supporting affidavit was false. Id.
G. Actions by a subcontractor against a principal contractor
1. If the principal contractor on an owner-occupied building fails, without due cause, to pay a
subcontractor in full within 30 days of full payment from the owner, and the parties did not
agree to different payment terms, the subcontractor may commence an action against the
principal to collect the amount due. Iowa Code § 572.30. The action against the principal
contractor may also be brought by an owner by subrogation. Id.
2. However, prior to initiating any such an action against the principal contractor, the
subcontractor or owner must give proper written notice of the nonpayment to the principal
contractor. Id.
3. If an action against the principal contractor is brought, exemplary damages may be available,
in addition to actual damages. See Id.
H. Satisfaction of the mechanic’s lien 1. If the claim is paid, thereby satisfying the mechanic’s lien, the claimant is required to post a
“Satisfaction of Lien Notice” to the Mechanics’ Notice and Lien Registry website. Iowa
Code § 572.23.
2. If the claimant fails to do so for thirty days after being personally served with a written
demand, the claimant is required to pay $25.00 to the owner or contractor and is liable to any
party injured by the claimant’s failure to acknowledge satisfaction. Id.
3. If payment is made to the general contractor by the owner within 90 days on which the last
labor was performed or the last material was provided, the owner will still liable to the
subcontractor for the full amount. Iowa Code § 572.14.
IV. OTHER MISCELLANEOUS LIENS ON PROPERTY
A. Real estate tax liens
1. “Real estate taxes become liens on the assessed real estate against all persons except the State
and are first liens superior to all other encumbrances.” Merv E. Hilpipre Auction Co. v.
Solon State Bank, 343 N.W.2d 452, 455 (Iowa 1984); Iowa Code § 445.28.
2. The remedy available to counties for collection of delinquent taxes is an annual tax sale,
which is held on the third Monday in June. Hilpipre Auction Co. at 456; Iowa Code § 446.7.
B. Special assessments
1. “A city may assess to private property within the city the cost of construction and repair of
public improvements within the city, and main sewers, sewage pumping stations, disposal
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and treatment plants, waterworks, water mains, extensions, and drainage conduits extending
outside the city.” Iowa Code § 384.38.
2. The primary purpose of special assessments is to require private property owners who receive
a special benefit from a public improvement to reimburse the city for that special benefit.
Uhlenhake v. City of Ossian, 418 N.W.2d 642, 646 (Iowa 1988).
a. Therefore, the amount of the special assessment cannot exceed the special benefit
conferred on the private property. See Iowa Code § 384.61.
3. Once the city has followed the proper procedures for adopting a Resolution of Necessity for
the special assessments, and the Resolution of Necessity, plat, and schedule of assessments
has been filed with the county treasurer, the special assessments, with interest, become a lien
on the benefited properties until paid. Iowa Code § 384.65(5).
4. Liens for special assessments are not divested by judicial sale and have equal priority with
ordinary taxes. Iowa Code § 384.65(5).
5. The statute of limitations and procedure for challenging a special assessment in district court
is found in Iowa Code § 384.66.
C. State income tax liens
1. Unpaid state income taxes, including any interest, penalty or costs that accrue, are liens upon
all of the taxpayer’s property, both real and personal. Iowa Code § 422.26(1).
2. The lien attaches when the tax becomes due and payable and continues for 10 years unless
discharged or released. Iowa Code § 422.26(2). The lien may also be extended for an
additional 10 years if the proper notice is filed. Id.
D. Federal income tax liens
1. Federal taxes, including interest, additions, penalties and costs that accrue, are a lien upon the
taxpayer’s property, both real and personal, if the taxes remain unpaid by the taxpayer after
demand. 26 U.S.C. § 6321.
2. The government perfects its federal tax lien against purchasers, holders of security interests,
judgment lien creditors and mechanic’s lienors, by filing a Notice of Federal Tax Lien. 26
U.S.C. § 6323(a).
a. Even if a Notice of Federal Tax Lien is filed, certain interests are given special
protection. See 26 U.S.C. § 6323(b)-(e).
b. Furthermore, in order to continue the effect of the Notice of Federal Tax Lien, the
government must re-file the Notice during “the one-year period ending 30 days after the
expiration of 10 years after the date of assessment of the tax” or, for subsequent re-
filings, during “the one-year period ending with the expiration of 10 years after the close
of the preceding required refilling period for such notice of lien.” 26 U.S.C. § 6323(g).
See also 26 C.F.R. § 301.6323(g)-1.
3. In general, the government may only collect the tax by levy or court proceedings if the levy
or court proceedings to collect the tax are commenced within the 10 years following
assessment of the tax. 26 U.S.C. § 6502(a)(1).
E. Federal estate tax liens
1. Generally, federal estate taxes are a lien on the property in the gross estate of the decedent for
10 years from the date of death, unless the taxes are paid or become unenforceable due to
lapse of time. 26 U.S.C. § 6324(a)(1).
2. However, the part of the gross estate that is used to pay the expenses of estate administration
and charges against the estate, as allowed by the court, is divested of the estate tax lien. Id.
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F. Federal gift tax liens
Generally, gift taxes are a lien upon all property contained in the gift(s) for which the particular
return is filed, for a period of 10 years from the date of the gift(s), unless the gift tax is paid or
becomes unenforceable due to lapse of time. 26 U.S.C. § 6324(b).
G. Inheritance tax liens
1. With the exception of property passing to the surviving spouse and certain relatives of the
decedent, Iowa’s inheritance tax is a lien upon the estate subject to tax “and all property of
the estate or owned by the decedent from the death of the decedent until paid…” Iowa Code
§ 450.7(1).
2. The inheritance tax lien is no longer enforceable after 10 years from the date of death of the
decedent, except to the extent taxes can be attributed to deferred or remainder interests and
have been properly deferred. Iowa Code § 450.7(1).
3. The state is not required to record notice of the inheritance tax lien. Iowa Code §450.7(2).
4. A conveyance of property that is subject to an inheritance lien does not discharge the
inheritance tax lien, unless it is a “sale, exchange, mortgage, or pledge of property by the
personal representative pursuant to a testamentary direction or power, pursuant to section
633.387, or under order of court…” Iowa Code §§ 450.17 & 450.7(3).
H. Judgment liens
1. A judgment in the district or appellate courts of Iowa, or in the Iowa federal district courts or
the Eighth Circuit Court of Appeals, is a lien upon any real estate the defendant owned at the
time of the judgment, or which was acquired by the defendant after the judgment, for a period
of 10 years from the date of judgment. Iowa Code § 624.23(1).
a. However, judgment liens usually do not attach to real estate of the defendant which is
occupied as a homestead. See Iowa Code § 624.23(2).
b. Furthermore, the judgment lien will not attach to real estate acquired by the defendant
subsequent to the judgment if the defendant’s personal liability on the judgment has been
discharged in bankruptcy. Iowa Code § 624.23(3).
2. If the judgment was rendered by the Iowa Supreme Court or the Iowa Court of Appeals, or
the defendant’s real estate is located outside of the county where the judgment was rendered,
a verified copy of the judgment must, in most cases, be filed with the Clerk of Court of the
county in which the real estate lies before the judgment lien will attach to the real estate.
Iowa Code § 624.24.
3. “A court-ordered child support judgment becomes a lien when payment is due.” Broyles v.
Iowa Dept. of Social Serv., 305 N.W.2d 718, 721 (Iowa 1981).
I. Mortgage liens
1. A lien arising from a mortgage or other pledge of real estate as security attaches to the real
estate described in the instrument.
2. The mortgage lien is valid against subsequent purchasers for value, without actual notice of
the lien, only if it is filed and recorded in the county where the real estate is situated. Iowa
Code § 558.41.
3. Priority of mortgage liens:
a. In general, priority of mortgages is determined by the date of filing of the mortgage.
b. However, purchase money mortgages “have priority over and [are] senior to preexisting
judgments against the purchaser and any other right, title, interest, or lien arising either
directly or indirectly by, through or under the purchaser[,]” so long as the mortgage states
that it is a purchase money mortgage. Iowa Code § 654.12B.
i. A purchase money mortgage is a mortgage that is either:
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a) Taken by a lender who is providing funds to allow the buyer to acquire rights
in the real estate; or
b) Taken by the seller to secure all or part of the purchase price of the real
estate. Id.
c. Furthermore, if a prior recorded mortgage contains a proper notice regarding potential
future loans and advancements, amounts later loaned or advanced pursuant to the prior
mortgage may be senior to indebtedness under subsequently recorded mortgages or liens,
even if the prior mortgagee had actual notice of the indebtedness under the subsequent
mortgage or lien at the time the additional amounts were loaned or advanced by the prior
mortgagee. Iowa Code § 654.12A.
J. Homestead exemption 1. “The homestead of every person is exempt from judicial sale where there is no special
declaration of statute to the contrary.” Iowa Code § 561.16.
2. However, certain classes of debts may be satisfied by a sale of the homestead, including, but
not necessarily limited to:
a. Debts contracted prior to acquisition of the homestead, but only to the extent necessary to
satisfy any deficiency remaining after exhausting the debtor’s non-exempt property;
b. Debts “incurred for work done or material furnished exclusively for the improvement of
the homestead”;
c. Debts created by a written contract expressly stipulating that the homestead will be liable
and signed by the person(s) having power to convey the property, but only to the extent
necessary to satisfy any deficiency remaining after exhausting all other property pledged
for payment of the debt by the same contract; and
d. Debts for which the property could be sold, if it had never been held as a homestead, if
the debtor is deceased and has no survivor or issue. Iowa Code § 561.21.
3. If a written contract contains a waiver of the homestead exemption, and the contract affects
agricultural land or dwellings, buildings or appurtenances located on the land, the contract
must contain the following statement in bold type that is at least 10 points in size and must be
signed and dated by the person waiving the exemption: “I understand that homestead
property is in many cases protected from claims of creditors and exempt from judicial sale;
and that by signing this contract, I voluntarily give up my right to this protection for this
property with respect to claims based upon this contract.” Iowa Code § 561.22. This
requirement only applies if the agricultural land in question is 40 acres or more. Id.
V. QUIET TITLE ACTIONS
A. Persons entitled to bring a quiet title action. “An action to determine and quiet the title of real
property may be brought by anyone, whether in or out of possession, having or claiming an
interest therein, against any person claiming title thereto, though not in possession.” Iowa Code §
649.1.
B. Function of the quiet title action. The essential function of an action to quiet title is to remove
all clouds on the title of the Plaintiff, not merely to settle a particular claim. Smith v. Cretors, 181
Iowa 189, 164 N.W. 338, 340-41 (1917).
1. The decree quieting title only bars the claims of parties who are named as defendants in the
action and properly served with notice of the action. Therefore, any parties that might
possibly have a claim, which could cloud the Plaintiff’s title to the property, including
successors in interest and spouses, should be named in the action. 1 MARLIN M. VOLZ, JR.,
IOWA PRACTICE SERIES §3:2 (2009-2010 ed.). Furthermore, it may be advisable to include as
defendants “any unknown claimants of the real estate.”
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2. Examples of clouds on title that may be removed by an action to quiet title include:
a. Unreleased mortgages, where the mortgage has been paid in full but the mortgagee is
unwilling to provide a release;
b. Disputes as to boundaries; and
c. Gaps in title that cannot be cured by other curative acts.
C. Nature of the action to quiet title. Actions to quiet title are tried by equitable proceedings.
Iowa Code § 649.6.
D. Content of the petition to quiet title. 1. The petition must be under oath and must include the following:
a. A statement of the nature and extent of the Plaintiff’s estate;
b. An accurate description of the property;
c. A statement that “the [Plaintiff] is credibly informed and believes the [D]efendant makes
or may make some claims adverse to the [Plaintiff]”; and
d. A prayer “for the establishment of the [P]laintiff’s estate, and that the [D]efendant be
barred and forever estopped from having or claiming any right or title to the premises
adverse to the [P]laintiff.” Iowa Code § 649.2.
i. If the Plaintiff is not currently in possession of the property, the prayer may also
ask for recovery of possession of the property. Bates v. Bates, 237 Iowa 1408, 24
N.W.2d 460, 463 (1946).
2. A form Petition in Equity to Quiet Title can be found in 1 MARLIN M. VOLZ, JR., IOWA
PRACTICE SERIES §3:11 (2009-2010 ed.).
E. Service of notice. 1. All defendants must be properly served with notice of the action to quiet title and the notice
must accurately describe the property and the nature and extent of the Plaintiff’s claim. Iowa
Code § 649.3.
2. Service of the notice must comply with the Iowa Rules of Civil Procedure and be served as in
other cases. See Iowa Code § 649.3.
a. Personal service should be used, if possible. Service by publication may be used for
unknown claimants and non-residents, if personal service cannot be had in Iowa. See
I.R.C.P. 1.310.
F. Appointment of a guardian ad litem. 1. It may be necessary to have a guardian ad litem appointed for any defendant who is a minor,
prisoner, or incompetent. I.R.C.P. 1.212.
2. If unknown claimants are named as defendants, it will be necessary to have a guardian ad
litem appointed, as one or more of the unknown claimants could be a minor, prisoner, or
incompetent.
3. A form Application for Appointment of Guardian ad Litem and Order Appointing Guardian
ad Litem can be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES §§ 3:13 and 3:14
(2009-2010 ed.).
G. Servicemembers Civil Relief Act (SCRA).
1. Pursuant to the SCRA, the Court cannot enter a default judgment in favor of the Plaintiff until
the Plaintiff files an affidavit stating either:
a. That the Defendant is or is not in the military; or
b. Stating that Plaintiff cannot determine if the Defendant is in the military. 50 App.
U.S.C.A. § 521(b)(1).
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2. If the affidavit makes a statement as to whether or not the Defendant is in the military,
facts necessary to support the affidavit must also be stated in the affidavit. 50 App.
U.S.C.A. § 521(b)(1).
3. If the Defendant is in the military service, an attorney must be appointed by the court to
represent the Defendant before a judgment can be entered against him or her. 50 App.
U.S.C.A. § 521(b)(2).
4. When in doubt as to the military or non-military status of a defendant, it may be
advisable to have an attorney appointed to represent any defendants who may be in the
military, or may have been discharged from the military within 6 months prior to the
action to quiet title, in order to protect the default judgment from subsequent attacks. See
50 App. U.S.C.A. § 521(g)(providing that, under proper conditions, a default judgment
against a servicemember may be reopened on application of the servicemember made not
later than 90 days after termination of his or her military service).
5. A form Affidavit as to military service, Application for Appointment of an Attorney and
Order Appointing Attorney can be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES §§ 3:15, 3:16 and 3:17 (2009-2010 ed.).
H. Costs. The taxing of costs is left to the court’s discretion, except where the Defendant appears in
the action and disclaims all right and title adverse to the Plaintiff. Iowa Code § 649.4. In the
event of such a disclaimer by the Defendant, the Defendant is allowed to recover his or her costs.
Iowa Code § 649.4. However, if the Plaintiff, at least 20 days prior to filing the action to quiet
title, asked the Defendant to execute a quit claim deed and gave the Defendant $1.25, and the
Defendant failed to do so, the Defendant cannot recover his or her costs, despite the disclaimer.
Iowa Code § 649.5. In this situation, if the Plaintiff succeeds, the court may also award nominal
attorney’s fees to the Plaintiff. Iowa Code § 649.5.
VI. REAL ESTATE CLOSINGS
A. Closing Documents. Typically, the following documents are necessary for the real estate closing
and are prepared by the seller’s attorney:
1. A Closing Statement;
2. The Deed;
3. A Declaration of Value; and
4. A Groundwater Hazard Statement.
B. The Closing Statement.
1. Generally, the closing statement will set forth the expenses to be paid as part of the closing,
the parties responsible for paying said expenses, any credits to which a party is entitled and
the net amount to be paid by the buyer to the seller.
2. Details that are often included on the closing statement include, but are not limited to:
a. The amount of any earnest money already paid by the buyer;
b. The amount of any outstanding mortgages or other liens on the property to be paid by the
seller;
c. The amount of any filing fees for recording a release of any mortgage and other lien on
the property, which is typically paid by the seller;
d. The amount of any realtor’s commission to be paid as part of the closing;
e. The amount of any attorney’s fees to be paid as part of the closing;
f. The amount of any real estate taxes the real estate purchase agreement may require the
seller to pay (check the agreement for details regarding the proration of taxes for the
current fiscal year);
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g. The amount of the transfer tax, which is typically paid by the seller; and
h. The amount of any abstracting fees.
3. A typical closing statement starts with the total sale price and then deducts any earnest money
already paid by the buyer, in addition to any expenses to be paid by the seller, and then adds
any credits to which the seller is entitled, in order to arrive at a net amount to be paid by the
buyer at the closing.
4. Depending on the circumstances, the buyer’s attorney or the attorney for the lender may also
prepare a closing statement or may prepare the closing statement instead of the seller’s
attorney.
5. The closing statement should be provided to all of the parties for review at least one day prior
to the closing.
C. The Deed. 1. Types of deeds. The type of deed used will depend primarily on the type of warranty the
seller agreed to give to the buyer and the particular circumstances under which the real estate
transfer is occurring. The following are the most common types of deeds used:
a. General warranty deed. The general warranty deed contains the most comprehensive
warranty and is frequently referred to as a just a “warranty deed.” In the general
warranty deed, the grantor (seller) covenants that the grantor “hold[s] the real estate by
title in fee simple; that they have good and lawful authority to sell and Convey the real
estate; that the real estate is free and clear of all liens and encumbrances except as may be
[stated in the deed]; and the [grantor] Covenant[s] to Warrant and Defend the real estate
against lawful claims of all persons except as [stated in the deed].” Iowa State Bar
Association Form 101 (2006). Numerous different forms of general warranty deeds are
available from the Iowa State Bar Association.
b. Special warranty deed. In the special warranty deed, the grantor only agrees to warrant
and defend “against the lawful claims of all persons claiming by, through or under [the
grantor], except as [provided in the deed].” Iowa State Bar Association Form 105 (2005).
c. Quit claim deed. The quit claim deed makes no warranty and only transfers whatever
interest the grantor may have in the property. See Iowa State Bar Association Form 106
(2006). Quit claim deeds are often used to correct title defects.
d. Deed in fee simple without warranty. Just as it sounds, the deed in fee simple without
warranty conveys the property, but makes no warranty as to title, defense against third
parties or authority to convey. Cf. Iowa Code § 558.19(2).
e. Court officer deed. The court officer deed is used only by court appointed or supervised
fiduciaries, such as executors, administrators, conservators, and trustees, and may have
fewer warranties than the general or special warranty deed. See Iowa State Bar
Association Form P201 (2008).
2. Designating the grantor in the deed.
a. The grantor’s name should appear on the deed in the same form as it appears on the
instrument by which the grantor originally obtained title. If the grantor’s name has
changed since he or she originally obtained title, the deed should state the grantor’s
current legal name, followed by the phrase “formerly known as” and the name under
which original title was acquired by the grantor. 1 MARLIN M. VOLZ, JR., IOWA
PRACTICE SERIES §7:13 (2009-2010 ed.).
b. If the grantor is married, both the grantor and the grantor’s spouse should execute the
deed. See Iowa Code §§ 561.13 (relating to deeds to homestead property) & Iowa Code
§§ 633.211 (relating to the intestate share of the surviving spouse) and 633.238 (relating
to the surviving spouse’s elective share). Conversely, if the grantor is single, the deed
should indicate this fact.
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c. If the grantor is a non-individual, such as a corporation or a fiduciary, special deed forms
are available through the Iowa State Bar Association (Form 104, 107, 108, 111, 335 and
P201).
3. Properly conveying ownership to the grantee in the deed.
a. Joint tenancy
i. Under Iowa law, “conveyances to two or more in their own right create a tenancy
in common, unless a contrary intent is expressed.” Iowa Code § 557.15.
ii. Therefore, if the buyers wish to own the property as joint tenants with full rights
of survivorship, the deed needs to state that the property is being conveyed to the
buyers “as joint tenants with full rights of survivorship and not as tenants in
common.”
b. Tenancy in common
Although it is not absolutely required, the phrase “as tenants in common” should follow
the buyers’ names in the deed, if the buyers wish to so own the property, in order to
ensure that the buyers’ intent is clear. James C. Wine, Drafting Instruments of
Conveyance, REAL ESTATE PRACTICE MANUAL, IOWA STATE BAR ASSOCIATION (2003).
c. Inter vivos trust
i. If the buyer(s) wishes to convey the property to an inter vivos trust, the trustee
should be named as the grantee and the trustee’s name should be followed by a
phrase which identifies the individual as the trustee of the inter vivos trust. Id.
a) For example, the deed could convey the property to “John Doe, Trustee of
the Mary Doe Trust #1 created July 1, 1988.” Id.
ii. The inter vivos trust needs to be established, and a qualified trustee appointed,
prior to the date of the conveyance of the property. Id.
D. Declaration of Value. 1. The Declaration of Value is a statement showing the total amount paid for the real estate,
which must be signed by the buyer, the seller or their agents and submitted to the county
recorder with the deed. Iowa Code § 428A.1.
a. However, certain property transfers, such as those between a parent and child for which
no consideration is paid or those made pursuant to a decree of dissolution of marriage, do
not require a Declaration of Value be filed. Id.
2. A form Declaration of Value is available from the Iowa State Bar Association.
E. Groundwater Hazard Statement.
1. A Groundwater Hazard Statement, containing information relating to wells, solid waste
disposal, hazardous wastes, underground storage tanks, private burial sites and private
sewage disposal systems on the property, must be completed and signed by the seller or the
seller’s agent and submitted to the county recorder. Iowa Code § 558.69.
2. Only a form that has been approved by the Iowa DNR will be accepted by the county
recorder. A proper form is available through the Iowa State Bar Association. New
requirements relating to inspection of private sewage disposal systems went into effect in July
of 2010, and, therefore, caution must be exercised in order to ensure that the most current
version of the Groundwater Hazard Statement is used by the seller and that any inspection
requirements are complied with prior to the closing. See Iowa Code § 455B.172.
F. HUD-1 Statement. If a bank or other financial institution is making a loan as part of the real
estate transaction, and the real estate involved is a residential property designed principally for
occupancy by 1 to 4 families, the Real Estate Settlement Procedures Act (RESPA) requires that a
HUD-1 statement be prepared and completed. See 12 U.S.C. § 2601 et seq. The HUD-1 is
essentially a more formal form of a closing statement.
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G. Post-closing.
1. The party responsible for closing the real estate transaction may need to file Form 1099-S
with the IRS after the closing.
2. Form 1099-S contains information regarding the gross proceeds of the real estate transaction
and a copy must be provided to the seller (transferor) as well.
3. Additional information regarding Form 1099-S, and the deadline for filing Form 1099-S in
any given year, can be found on the IRS website at www.irs.gov.
VII. FORFEITURE
A. Forfeiture is one of the remedies that may be available to the seller (vendor) under a real estate
contract if the buyer (vendee) breaches the contract. The result of a successful forfeiture is that
the real estate contract is cancelled and the seller is allowed to regain possession of the real estate
while also retaining any payments already made by the buyer.
B. “Forfeiture is a harsh remedy and is not favored in either law or equity.” Sheeder v. Lemke, 564
N.W.2d 1, 3 (Iowa 1997). See also Lett v. Grummer, 300 N.W.2d 147, 149 (Iowa 1981)(stating
“[e]quity abhors forfeitures” and refusing to permit forfeiture where buyer’s breach was de
minimis).
C. The remedy of forfeiture is only available if the real estate contract expressly provides “for the
forfeiture of the [buyer]’s rights in [the] contract in case the [buyer] fails, in specified ways, to
comply with said contract…” Iowa Code § 656.1.
D. Furthermore, the real estate contract cannot be forfeited unless the seller strictly complies with
the forfeiture procedures found in Iowa Code Chapter 656 and is not herself in default. Iowa
Code § 656.1; Jensen v. Schreck, 275 N.W.2d 374, 385 (Iowa 1979); Youngblut v. Wilson, 294
N.W.2d 813, 818 (Iowa 1980).
E. Where agricultural property, as defined in Iowa Code section 654A.1, is involved and the
outstanding obligation on the contract is $20,000.00 or more, the seller must secure a mediation
release under Iowa Code section 654A.11, prior to initiating the forfeiture. Iowa Code §656.8.
1. However, the mediation release is not required if the court, after notice and hearing,
determines that the delay caused by mediation would result in irreparable harm to the person.
Id.
F. If the buyer is a member of the armed forces, and the real estate contract was entered into prior to
the buyer’s entry into military service, a court order may be necessary in order to proceed with
forfeiture if the contract breach occurred during the buyer’s military service. See Iowa Code
§29A.102.
G. In order to initiate forfeiture, the seller must serve a written notice on the buyer which does all of
the following:
1. Reasonably identifies, by a document reference number, the contract at issue and accurately
describes the real estate covered by the contract. Iowa Code § 656.2(1)(a).
2. Specifies the terms of the contract that have been breached by the buyer. Iowa Code §
656.2(1)(b).
a. It is important that the buyer be put “on specific notice of each and every alleged
default.” Brown v. Nevins, 499 N.W.2d 736, 738 (Iowa Ct. App. 1993).
25
b. However, a seller is not allowed to accelerate payments under an acceleration clause
contained in the contract and then demand that the entire contract price be paid in order to
avoid forfeiture. Hampton Farmers Co-op Co. v. Fehd, 257 Iowa 555, 559, 133 N.W.2d
872, 874 (Iowa 1965).
3. States that the contract will be forfeited unless, within 30 days after completion of service of
the notice on the buyer, the buyer performs the terms in default and pays the reasonable costs
of serving the notice. Iowa Code § 656.2(1)(c).
4. Specifies the amount of any attorney fees claimed by the seller and informs the buyer that
payment of such fees is not required to comply with the notice and prevent forfeiture. Iowa
Code § 656.2(1)(d).
a. The amount of the seller’s attorney fees for which the buyer can be held liable is capped
at $50.00 and the demand for such fees must be stated in the notice. Iowa Code § 656.7.
b. Since the buyer cannot be forced to pay the claimed attorney fees as part of the forfeiture
proceeding, the seller is authorized to file a small claims action to collect such fees. Id.
H. The written notice of forfeiture must also be served on any other parties in possession of the real
estate, the buyer’s mortgagees of record, and any person who asserts a claim against the buyer’s
interest, other than a governmental agency holding a lien for real estate taxes, who has recorded a
proper Request for Notice. Iowa Code § 656.2(2).
I. Service of the written notice of forfeiture can be made personally or, if personal service is not
possible, by publication. Iowa Code § 656.3.
J. A form written notice of forfeiture is available through the Iowa State Bar Association (Form
175).
K. If the buyer, or a mortgagee of the real estate, does not perform the breached terms and pay the
reasonable costs of serving the written notice of forfeiture within the 30 days, the contract is
forfeited and the seller may record a copy of the notice, with proper proof of service of the notice
attached, with the county recorder. Iowa Code § 656.5. A form affidavit in support of forfeiture
for this purpose is available through the Iowa State Bar Association (Form 176). By so recording,
the seller gives all parties constructive notice of the forfeiture. Iowa Code § 656.5.
L. A seller who chooses to exercise the right of forfeiture loses his or her right to sue the buyer for
any unpaid amounts due under the contract. Gray v. Bowers, 332 N.W.2d 323, 325 (Iowa 1983).
M. The burden of proof is on the party seeking to forfeit the contract and “[f]orfeitures will be
enforced only ‘when those claiming them…show that the equities are clearly on their side.’”
Sheeder v. Lemke, 564 N.W.2d 1, 3 (Iowa 1997)(quoting Kilpatrick v. Smith, 236 Iowa 584, 593,
19 N.W.2d 699, 703 (1945)).
N. It is possible for the seller to waive the right of forfeiture, even after serving a notice of forfeiture,
based on conduct of the parties during the 30-day cure period. Gottschalk v. Simpson, 422
N.W.2d 181, 184 (Iowa 1988).
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VIII. FORECLOSURE2
A. Notice and Opportunity to Cure. The mortgagee (the creditor) may need to give the mortgagor
(the borrower) proper notice and an opportunity to cure the default, prior to the commencement of
foreclosure proceedings, under the following circumstances:
1. Where the note or mortgage requires notice and opportunity to cure be given to the
mortgagor.
2. Where the mortgaged property is a one or two family dwelling which is the residence of the
mortgagor and the mortgagee is not an individual or individuals. Iowa Code § 654.2D.
3. Where the mortgaged property is agricultural land. Iowa Code § 654.2A.
4. Where the mortgagee will be seeking attorney’s fees from the mortgagor as part of the
foreclosure proceedings. Iowa Code § 625.25. See also Iowa Code § 654.4B(1).
5. Where the mortgage secures a “consumer credit loan,” as defined by the Iowa Consumer
Credit Code. Iowa Code § 537.5110.
6. Where the mortgagee is pursuing non-judicial foreclosure on a nonagricultural mortgage, as
provided in Iowa Code Chapter 655A. Iowa Code § 655A.3.
The requirements for the notice to cure, and the cure period, varies depending on which of the above
referenced circumstances exist in the particular case and, therefore, the applicable statute should be
reviewed carefully prior to proceeding with sending the notice to cure.
B. Notice of Mortgage Mediation Assistance for One and Two-Family Dwellings. Until at least
July 1, 2011, prior to commencement of foreclosure proceedings on a one or two-family dwelling
that is the residence of the mortgagor, the mortgagee must send the mortgagor a notice regarding
the availability of counseling and mediation, on a form prescribed by the attorney general. Iowa
Code § 654.4B(2). Said notice must also be served with the original notice and petition seeking
foreclosure. Id.
C. Mediation Releases for Agricultural Property. Where the mortgaged property is agricultural
property, and the debt is $20,000.00 or more, foreclosure proceedings cannot be initiated until a
mediation release pursuant to Iowa Code section 654A.11 has been issued. Iowa Code § 654.2C.
However, a mediation release is not required if the court, after notice and hearing, determines that
the person would suffer irreparable harm due to the delay caused by mediation. Id.
D. Special Protection for Members of the Armed Forces. Members of the armed forces are
afforded special protection against foreclosure. See Iowa Code § 654.17C and 29A.103.
Therefore, before proceeding with a foreclosure against a mortgagor who is a servicemember, or
their dependents, a careful review of the Iowa National Guard Civil Relief Act (Iowa Code
Chapter 29A), the federal Servicemembers Civil Relief Act of 2003 (50 App. U.S.C.A. §§ 501 et
seq.) and Iowa Code section 654.17C is necessary.
E. Judicial Foreclosure 1. The foreclosure action must be brought in the county in which all or part of the mortgaged
property is situated. Iowa Code § 654.3.
2. All parties having any interest in the property, including the spouse of the property owner and
any parties in possession, should be named as defendants in the foreclosure action. See
2 This section specifically discusses foreclosure of mortgages. However, the same statutory procedure can
be used to foreclose the rights of a vendee (i.e. buyer) pursuant to a real estate installment contract. See Iowa Code §§ 654.11 and 654.12.
27
Chase v. Abbott, 20 Iowa 154, 1866 WL 137 at *3 (Iowa 1866); Francksen v. Miller, 297
N.W.2d 375, 377 (Iowa 1980).
a. However, there is an alternative to naming all judgment creditors as defendants, which
can be found in Iowa Code section 654.15B.
3. In general, actions founded on written contracts must be brought within 10 years. Iowa Code
§ 614.1(5). However, as described in section II, above, a special statute of limitations applies
to foreclosure of ancient mortgages. See Iowa Code § 614.21.
4. Sale free of liens. After the foreclosure action has been filed, but prior to the entry of the
judgment of foreclosure, the mortgagee “may apply to the court for an order approving an
offer for a commercially reasonable sale of the property free of the claims of the parties to the
action and other persons served with notice pursuant to Iowa Code § 654.15B.” Iowa Code §
654.17A. However, all equitable titleholders who have not abandoned the property must
consent to the sale and parties in interest must be given the opportunity to object. Id.
5. Agreements to modify the loan. Where the mortgaged property is a nonagricultural one or
two-family dwelling, which is resided in by the mortgagor, a procedure exists whereby the
mortgagor and mortgagee can divest the property of junior liens, provided that a written
modification of the mortgage obligation is agreed upon by the mortgagor and mortgagee,
allowing the mortgagor to continue to reside on the property, and said modification reduces
the net present value of the mortgage debt by at least 10%. Iowa Code § 654.17B. However,
this procedure may only be available until July 1, 2014. See Iowa Code § 654.17B(2) (stating
that the section is repealed July 1, 2014).
6. General definitions of foreclosure terms.
a. Redemption: The right, following a foreclosure sale, to recover the sold property by
paying outstanding debts and charges on the property within a specific period of time.
See BLACK’S LAW DICTIONARY 591 (2nd
pocket ed. 2001).
b. Deficiency judgment: “A judgment against a debtor for the unpaid balance of the debt if
a foreclosure sale…fails to yield the full amount of the debt due.” BLACK’S LAW
DICTIONARY 378 (2nd
pocket ed. 2001).
7. Foreclosure without redemption. So long as the mortgaged property is not used for an
agricultural purpose, the mortgagee has the option of electing foreclosure without
redemption. Iowa Code § 654.20. If the mortgagee so elects, the first page of the Petition in
Equity must include, in capital letters the same font and size as the rest of the Petition, a
notice of the election to foreclose without redemption, the particular text of which is found in
Iowa Code section 654.20. If the Petition does not also include a waiver of deficiency
judgment, additional text is required in the notice. Id.
a. If the mortgagee elects foreclosure without redemption, the mortgagor loses the right to
redeem the property after the sale, but may file a demand for delay of sale at any time
prior to entry of the judgment. Iowa Code §§ 654.23 & 654.21.
i. If a proper demand for delay of sale is filed, and the mortgaged property is a one
or two-family dwelling and the residence of the mortgagor, the sale will be
delayed for 12 months from the entry of judgment. Iowa Code § 654.21.
However, if the Petition for foreclosure included a waiver of deficiency
judgment, the sale will only be delayed for six months. Id.
a) If the Petition did not include a waiver of deficiency judgment, and the
mortgaged property is a one or two-family dwelling where the mortgagor
resides, the mortgagor may be subject to a deficiency judgment if, and only
if, a demand for delay of sale was filed and the proceeds from the sale of the
property are not enough to satisfy the mortgage debt and costs. Iowa Code
§§ 654.6 and 654.26.
ii. If a proper demand for delay of sale is filed, and the mortgaged property is not
the residence of the mortgagor or is not a one or two-family dwelling, the sale is
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delayed for 2 months from the entry of judgment, regardless of whether the
Petition included a waiver of deficiency judgment. Iowa Code § 654.21. If the
Petition for foreclosure did not include a waiver of deficiency judgment, the
mortgagor may be subject to a deficiency judgment if the sale proceeds are not
enough to satisfy the mortgage debt and costs, regardless of whether or not a
demand for delay of sale is filed. Iowa Code §§ 654.6 and 654.20.
iii. A delay of the sale may allow the mortgagor to cancel the sale, despite the
foreclosure judgment having been entered, if the mortgagor is able to satisfy the
judgment during the period of delay. Iowa Code § 654.21.
b. Junior lienholders also lose the right to redeem when the mortgagor elects foreclosure
without redemption. Iowa Code § 654.23.
i. However, both the junior lienholder and the mortgagor can purchase the property
at the sale. Id.
a) The mortgagor need only pay an amount equal to the judgment in order to be
entitled to ownership of the property, even if higher bids are received by
other parties. Id.
b) If the property is purchased by the mortgagor, the junior lienholder’s interest
in the property is preserved, rather than extinguished, as occurs with
purchases of the property by parties other than the mortgagor. Id.
c) In both a foreclosure without redemption and a foreclosure with redemption,
junior creditors have the right to file a request for notice of the sheriff’s sale
and serve it on the mortgagee in whose favor the foreclosure judgment was
rendered. Iowa Code § 654.15A. If the request for notice is properly served
and the junior creditor still does not receive notice of the sale, the court may
set aside the sale if the junior creditor was damaged by not receiving the
notice. Id.
c. After the sale of the property, where the mortgagee elected foreclosure without
redemption, the purchaser is entitled to immediate possession of the property and an
immediate deed to the property. Iowa Code § 654.24.
8. If the mortgagee in the foreclosure action is successful, the court will enter a judgment for the
entire amount due and order all or part of the mortgaged property sold in order to satisfy the
judgment, with interest and costs. Iowa Code § 654.5. The court will also determine issues
of title raised in the pleadings to the extent necessary to allow clear title to pass to the
purchaser at the tax sale. Id.
a. “As far as practicable, the property sold must be only sufficient to satisfy the mortgage
foreclosed.” Iowa Code § 654.10.
9. Once a judgment of foreclosure has been entered, the Clerk of Court will issue a special
execution for the sale, to the sheriff, upon demand of the mortgagee. Iowa Code §§ 654.5
and 626.7.
a. However, the sale will be delayed if the mortgagee elected foreclosure without
redemption and the mortgagor filed a demand for delay of sale prior to the entry of the
judgment of foreclosure. Iowa Code § 654.21.
b. If the mortgagee did not elect foreclosure without redemption, the purchaser at the sale is
only entitled to a sheriff’s certificate, until the applicable redemption period has passed.
Iowa Code § 626.95.
10. Use of proceeds from the sale of the mortgaged property:
a. If there are proceeds remaining after the senior mortgage and costs are satisfied,
remaining liens are paid off in the order of their priority. Iowa Code § 654.9.
b. If the senior mortgage and costs have been satisfied, and there are no remaining liens
on the property, any remaining proceeds must be paid to the mortgagor. Iowa Code §
654.7.
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11. Foreclosure with redemption. Unless the mortgagee elected foreclosure without
redemption, the mortgagor has stayed execution of the judgment of foreclosure, or the
foreclosed estate was leasehold with less than two years remaining, the mortgagor has a right
to redeem the property after the sale. Iowa Code §§ 654.5, 628.4, and 628.2. In general, the
redemption period for the mortgagor is one year from the date of sale and the mortgagor is
entitled to possession of the property during that year. Iowa Code § 628.3. However, the
redemption period can vary greatly, depending on the circumstances. See Iowa Code §§
628.26 through 628.28. For example, the redemption period is shortened to 180 days if the
mortgaged property is not used for agricultural purposes or is not a one or two-family
dwelling that is the residence of the debtor and the mortgagee has not waived the right to a
deficiency judgment. Iowa Code § 628.28.
a. Creditors with an interest in the mortgaged property may also have the opportunity to
redeem the property, including redeeming from each other. See Iowa Code Chapter 628.
b. If the mortgaged property is agricultural land, a separate procedure exists whereby
separate redemption of the homestead can be made by the mortgagor. Iowa Code §
654.16. Furthermore, the mortgagor of agricultural land has a right of first refusal on the
land. Iowa Code § 654.16A.
12. Sample foreclosure petitions can be found in 3 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES § 33:30 (2009-2010 ed.) and 17 DAVID M. ERICKSON & CHRISTOPHER TALCOTT,
IOWA PRACTICE SERIES §§ 16:9 & 16:10.
F. Non-judicial Foreclosure 1. Two forms of non-judicial foreclosure are available in Iowa. See Iowa Code § 654.18 and
Iowa Code Chapter 655A.
2. Non-judicial foreclosures pursuant to section 654.18 must be done pursuant to a mutual
written agreement between the mortgagee and the mortgagor, which is entered into
voluntarily. Iowa Code § 654.18(1). Furthermore, the statutory procedure found in section
654.18 must be followed, which includes giving notice to all junior lienholders. Id.
a. Where a voluntary non-judicial foreclosure pursuant to section 654.18 is used, the
mortgagor loses their right of redemption and their right to any sale proceeds in excess of
the outstanding debt and costs. Id. However, the mortgagor also does not have to pay
any deficiency. Id.
3. The non-judicial foreclosure procedure provided for in Iowa Code Chapter 655A is only
available when the mortgaged property is not agricultural land and is not a one or two-family
dwelling that is the residence of an equitable titleholder. Iowa Code § 655A.9.
4. The mortgagee does not need an agreement with the mortgagor in order to initiate a non-
judicial foreclosure pursuant to Iowa Code Chapter 655A, but the statutory procedure found
in said chapter must be followed. See Iowa Code § 655A.2. The effect of a non-judicial
foreclosure pursuant to Iowa Code Chapter 655A is that all junior liens are extinguished, as is
the indebtedness that was secured by the foreclosed mortgage, and all of the mortgagor’s
interest in the property passes to the mortgagee. Iowa Code § 655A.8.
G. Deed in Lieu of Foreclosure. 1. The parties may agree that, in lieu of foreclosure proceedings, the mortgagor will deed the
mortgaged property to the mortgagee, in satisfaction of part or all of the outstanding debt. If
there are additional parties having an interest in the property, the interest of said additional
parties will not be cancelled by the deed in lieu of foreclosure and it may not be possible or
advisable to proceed with a deed in lieu of foreclosure.
2. Where this remedy is used, the mortgagor’s right of redemption will not be barred unless it is
clear that an absolute sale, rather than a mere continuation of the security, was intended by
the parties to the deed. Tom Riley Law Firm, P.C. v. Padzensky, 430 N.W.2d 416, 417 (Iowa
30
1988). Equity favors redemption rights and, therefore, when a mortgagor deeds property to a
mortgagee, there is a presumption that the deed is a continuation of the security and the right
of redemption endures. Id. However, if the mortgaged property is agricultural land, different
rules may apply. See Iowa Code § 654.19.
IX. PARTITION
A. Basis for the action. Where property, real or personal, is owned jointly or in common by two or
more parties, a partition action may be brought in equity to divide the property into individually
owned interests.3 See I.R.C.P. 1.1201(1).
B. Governing statutes and rules. Iowa Rule of Civil Procedure 1.1201 et seq. and Iowa Code
Chapter 651 govern partition actions in Iowa.
C. Partition by sale v. Partition in-kind. Partition by sale is favored over partition in-kind and the
burden is on the party requesting partition in-kind to show that partition in-kind is equitable and
practicable. I.R.C.P. 1.1201(2). See also Spies v. Prybil, 160 N.W.2d 505, 508 (Iowa 1968).
1. If only a portion of the property can be conveniently partitioned in-kind, the court may order
that portion divided in-kind and the remainder of the property, which cannot be conveniently
partitioned in-kind, sold. I.R.C.P. 1.1201(3). See also Iowa Code § 651.3.
2. If partition of personal property is sought, and any part of the personal property is subject to a
lien, partition in-kind is not an available option. I.R.C.P. 1.1201(2).
D. Parties having a right to partition. 1. In general, partition is only allowed between joint tenants and tenants in common and a
partition suit cannot be brought against a person who holds only a remainder interest in the
property. Morris v. Morris, 383 N.W.2d 527, 528 (Iowa 1986).
2. However, a partition action may be brought against the holder of a future interest in the
property if such an action is specifically authorized by statute. See Iowa Code § 557.9
(allowing the court to partition by sale upon the petition of a life tenant, if the holder of the
reversion consents to the sale).
E. Limitation on commencement where probate is pending. “Where the entire interest in real
estate is owned by a decedent on whose estate administration or probate is pending, the [partition]
action cannot be brought until four months after the second publication of the notice of
appointment of the personal representative, or at any time while application for authority to sell
such real estate is pending in the probate proceeding.” I.R.C.P. 1.1202.
F. Content of the petition for partition. 1. Iowa Rule of Civil Procedure 1.1203 requires that the Petition in Equity contain the following
information:
a. A description of the property;
b. A description of the Plaintiff’s interest in the property;
c. The name of any “indispensable parties” (as provided immediately below); and
d. A description of the nature and extent of each interest or lien in the property.
2. A form Petition in Equity can be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES
§12.23 (2009-2010 ed.).
3 The parties may instead agree to a voluntary partition of the property, thereby avoiding the necessity of
judicial proceedings. See 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES §12.1 (2009-2010 ed.). However, the discussion of partition contained hereinafter will be confined to partition by judicial proceedings.
31
G. Necessary and optional parties to the partition action. 1. The following parties are “indispensable” to the partition action and, therefore, must be
named as parties:
a. All owners of undivided interests;
b. All holders of liens against less than the entire real estate; and
c. All holders of any liens on personal property. I.R.C.P. 1.1205(1).
2. The following are parties may also be named as parties to the partition action:
a. All other parties having actual, apparent, claimed or contingent interests; and
b. All holders of liens on the entire real estate. I.R.C.P. 1.1205(2).
3. Only parties who are named in the partition action will be bound by the court’s judgment and,
therefore, it may be advisable to name all potentially interested parties in the partition action.
See Curtis v. Reilly, 188 Iowa 1217, 177 N.W. 535 (1920).
H. Joinder of claims and counterclaims. 1. Joinder of claims and counterclaims in the partition action may only be used for the
following purposes:
a. To perfect or quiet title to the property; or
b. To “have an adjudication of the rights of any or all parties as to any or all matters
growing out of or connected with the property, including liens between them.” I.R.C.P.
1.1207.
2. This restriction on joinder of claims and counterclaims does not prevent a party from
requesting partition of several pieces of real or personal property, which are owned by the
same parties, in the same partition action. See I.R.C.P. 1.1201(4).
I. The decree. If partition is granted, the decree of partition will establish each owner’s interest and
share in the property, make a determination as to whether the partition will be in-kind or by sale,
and appoint referee(s) to effectuate the in-kind division or sale. I.R.C.P. 1.1210.
J. Costs. 1. The Plaintiff advances the costs of the partition action but, ultimately, all parties will be
required to pay the costs proportionate to their interests in the property. I.R.C.P. 1.1224.
However, if costs are created by a contest, only the losing contestant is responsible for such
costs, unless the court orders otherwise. I.R.C.P. 1.1224.
2. In actions involving partition of real estate, the fees of the Plaintiff’s attorney, in an amount
deemed reasonable by the court, will be taxed as costs. I.R.C.P. 1.1225.
3. In all partition actions, such reasonable compensation as the court allows for appraisers,
referees and attorneys employed by a referee with court approval will be taxed as costs.
I.R.C.P. 1.1226.
X. ADVERSE POSSESSION
A. Elements of adverse possession claim. “A party claiming title by adverse possession must
establish hostile, actual, open, exclusive and continuous possession, under claim of right or color
of title for at least 10 years.” C.H. Moore Trust Estate by Warner v. City of Storm Lake, 423
N.W.2d 13, 15 (Iowa 1988).
B. Hostile. The hostility requirement is satisfied when the claimant’s conduct shows “his [or her]
intention to hold title exclusive of all other titles or against the world.” Burgess v. Leverett &
Assoc., 252 Iowa 31, 105 N.W.2d 703, 706 (Iowa 1960). See also Collins Trust v. Allamakee
County Bd. of Supervisors of Allamakee County, 599 N.W.2d 460, 464 (Iowa 1999)(stating
32
“[h]ostility does not impute ill-will, but refers to declarations or acts revealing a claim of
exclusive right to the land.”). Examples of such conduct include selling the property and
promising to provide marketable title, renting the property out to others, and paying taxes on the
property. Burgess at 706.
C. Actual. The actual possession requirement is satisfied if the claimant has, for the 10 year period,
exercised the type of possession or control over the property that owners of comparable pieces of
property would exercise. Burgess at 706. If the claimant rented out the property during the 10
year period, the tenant’s possession of the property constitutes possession by the claimant. Id.
Furthermore, “possession of grantors claiming title may be tacked to possession of the claimant.”
Id.
D. Open. Possession by the claimant must be open enough that the true owner of the property could
have learned of the claimant’s possession of the property, though actual notice by the landowner
is not required. 17 DAVID M. ERICKSON & CHRISTOPHER TALCOTT, IOWA PRACTICE SERIES
§11:9 (2009-2010 ed.).
E. Exclusive. As with the actual possession requirement, the exclusive possession requirement
involves comparing the claimant’s exertion of control over the property with “the conduct of
owner’s in general, in holding, managing, and caring for property of like nature and condition.”
C.H. Moore Trust Estate by Warner v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa
1988)(quoting Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646, 647 (1918)). Therefore,
mere use of the property by third parties does not necessarily bar a claim for adverse possession.
Id. at 15-16.
F. Continuous. Continuous possession of the property means that, during the 10 year period, the
claimant’s possession was not “at any time interrupted or broken by anyone claiming title adverse
to the [claimant] or those in privity with [the claimant]” Burgess at 706.
G. Under claim of right or color of title.
1. The requirement of possession under claim of right or color of title prevents mere squatters
from acquiring title by adverse possession. See Carpenter v. Ruperto, 315 N.W.2d 782, 785
(Iowa 1982).
2. With regard to a claim of right, the Iowa Supreme Court has stated that “‘[i]t is not necessary
to establish a claim of right…by an express declaration…; it is sufficient if…(claimant) has
acted so as to clearly indicate he did claim title…(It) need not be based on writing…The
actual occupation, use, and improvement of the premises by the claimant, as if he were in fact
the owner thereof without payment of rent or recognition of title in another or disavowal of
title in himself, will be sufficient to raise a presumption of his entry and holding as absolute
owner and, unless rebutted, will establish the fact of a claim of right.’” Council Bluffs Sav.
Bank v. Simmons, 243 N.W.2d 634, 636 (Iowa 1976)(quoting 3 Am. Jur. 2D Adverse
Possession § 101 (1962)).
3. However, a party making a claim of right to the property must have a good faith basis for the
claim. Carpenter at 786.
4. Color of title means that the claimant appeared to have valid title but, in actuality, did not
have valid title. Grosvenor v. Olson, 199 N.W.2d 50, 52 (Iowa 1972). For example, it has
been held that “[a] void deed taken in good faith affords sufficient color of title to sustain the
plea and claim of adverse possession by one who, relying thereon has taken and held the
possession for the required length of time.” Id.
33
XI. DISPUTED BOUNDARIES
A. Potential theories for resolving boundary disputes. There are numerous potential theories for
resolving boundary disputes between adjoining landowners, including:
1. Adverse possession (as described above);
2. Boundary by acquiescence;
3. Special action pursuant to Iowa Code Chapter 650;
4. Boundary by written agreement; and
5. Estoppel.
B. Boundary by acquiescence. 1. “Adjoining land owners may establish a boundary line by mutually acquiescing in a dividing
line definitely marked by a fence of in some other manner [sic] for a period of at least ten
consecutive years, even though a survey may show otherwise and neither party intended to
claim more than called for by his deed….Acquiescence may be inferred from the silence or
inaction of one party who knows of the boundary line claimed by the other and fails to take
steps to dispute it for the ten year period.” Ivener v. Cowan, 175 N.W.2d 121, 122 (Iowa
1970). However, mere acquiescence in a fence as a barrier, rather than as a boundary, is not
sufficient to establish a boundary by acquiescence. Id.
2. Where the landowner has acquiesced in the boundary line for the ten year period, subsequent
purchasers of the property cannot question the boundary line. Dart v. Thompson, 261 Iowa
237, 154 N.W.2d 82, 84 (Iowa 1967).
C. Chapter 650 special actions.
1. “When one or more owners of land, the corners and boundaries of which are lost, destroyed,
or in dispute, desire to have the same established, they may bring an action in the district
court of the county where such lost, destroyed, or disputed corners or boundaries, or part
thereof, are situated, against the owners of the other tracts which will be affected by the
determination or establishment thereof, to have such corners or boundaries ascertained and
permanently established. Iowa Code § 650.1. A county must be included as a defendant, if
there is a public road that is likely to be affected by the action. Iowa Code § 650.2.
2. Once the action is filed, the court appoints a commission of one or more disinterested
surveyors, to survey and locate the boundaries and corners, taking testimony of witnesses if
necessary, and file a report with the court within 60 days of the commission’s appointment.
Iowa Code §§ 650.7, 650.9 & 650.11.
a. The commission’s report may be filed later than 60 days after its appointment if there is
good reason for the delay. Iowa Code § 650.11.
b. Any interested party may file exceptions to the commission’s report within 20 days of the
report. Iowa Code § 650.12.
3. The common law doctrine of boundary by acquiescence has, more or less, been codified in
Chapter 650 and can be addressed by the commission and the court as part of the special
action pursuant to Chapter 650, if the issue is properly raised by one of the parties. See Iowa
Code §§ 650.6, 650.10 & 650.14.
a. The court also has discretion to try the issue of acquiescence, prior to the appointment of the
commission. Iowa Code § 650.6.
4. The boundaries and corners established by the court in the final judgment, or on appeal
therefrom, are binding upon the parties. Iowa Code § 650.13.
5. A form Chapter 650 Petition can be found in 1 MARLIN M. VOLZ, JR., IOWA PRACTICE
SERIES §4:9 (2009-2010 ed.).
34
D. Boundary by written agreement. 1. If all of the parties affected by a lost or disputed boundary or corner enter into a written
agreement which designates the boundary or corner, is accompanied by a plat thereof, is
signed and acknowledged by each of the parties and is properly recorded, the determination
of the boundary or corner in the written agreement is binding upon the heirs, successors, and
assigns of said parties. Iowa Code § 650.17.
E. Estoppel
1. “…[W]hen one has innocently invaded the right of another, thinking he is within his own
property, and this invasion is known to the one whose right is invaded and he makes no
protest but permits the invader to make substantial improvements upon the invaded ground,
the principle of estoppel comes into play.” Schauland v. Schmalta, 252 Iowa 426, 107
N.W.2d 68, 71 (Iowa 1961).
a. However, a permanent or substantial improvement must have been made to the property
or the estoppel claim will fail. Dart v. Thompson, 261 Iowa 237, 154 N.W.2d 82, 87
(Iowa 1967).
XII. EASEMENTS
A. Nature of the interest. An easement is essentially a right to use the land of another for a
particular purpose or use.
B. Definitions. 1. Dominant estate: “An estate that benefits from an easement.” BLACK’S LAW DICTIONARY
246 (2nd
pocket ed. 2001).
2. Servient estate: “An estate burdened by an easement.” BLACK’S LAW DICTIONARY 246 (2nd
pocket ed. 2001).
3. Easement appurtenant: “An easement created to benefit another tract of land, the use of the
easement being incident to the ownership of the other tract.” BLACK’S LAW DICTIONARY
227 (2nd
pocket ed. 2001). See also Rank v. Frame, 522 N.W.2d 848, 852 (Iowa Ct. App.
1994). An easement appurtenant runs with the land. Rank v. Frame, 522 N.W.2d 848, 852
(Iowa Ct. App. 1994).
4. Easement in gross: “An easement benefiting a particular person and not a particular piece of
land. The beneficiary need not, and usually does not, own any land adjoining the servient
estate.” BLACK’S LAW DICTIONARY 227 (2nd
pocket ed. 2001). An easement in gross does
not run with the land. 17 DAVID M. ERICKSON & CHRISTOPHER TALCOTT, IOWA PRACTICE
SERIES § 10:1 (2009-2010 ed.).
C. Methods for creating easements. An easement may be created by any of the following
methods:
1. By express grant or reservation;
2. By prescription;
3. By necessity; or
4. By implication. Nichols v. City of Evansdale, 687 N.W.2d 562, 568 (Iowa 2004).
D. Easement by express grant or reservation. 1. “An express easement is an interest in land, which is within the statute of frauds and must be
in writing.” Nichols v. City of Evansdale, 687 N.W.2d 562, 568 (Iowa 2004).
2. Although the express easement must be in writing, no particular document form or words are
required. Gray v. Osborn, 739 N.W.2d 855, 861 (Iowa 2007). The primary consideration in
determining whether an express easement exists is the intention of the parties. Id.
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a. “An easement created via a plat map is valid under Iowa law.” Id.
b. An easement may also be created by a separate easement agreement or by language in a
deed. Cf. Hawk v. Rice, 325 N.W.2d 97, 98-99 (Iowa 1982).
E. Easement by prescription. 1. An easement by prescription is distinguished from an interest acquired by adverse possession
in that the easement holder merely acquires the right to use the property, rather than acquiring
title to the property. Nichols v. City of Evansdale, 687 N.W.2d 562, 568 (Iowa 2004).
2. However, the basic elements required to prove an easement by prescription are very similar to
those for adverse possession. “Under Iowa law, an easement by prescription is created when
a person uses another’s land under claim of right or color of title, openly, notoriously,
continuously, and hostilely for ten years or more.” Nichols v. City of Evansdale, 687 N.W.2d
562, 568 (Iowa 2004)(quoting Collins Trust v. Allamakee County Bd. of Supervisors, 599
N.W.2d 460, 463-64 (Iowa 1999)).
3. Easements by prescription are not only governed by common law, but also by Iowa Code
Chapter 564. Notably, Chapter 564 requires that adverse possession of the easement be “be
established by evidence distinct from and independent of its use, and that the party against
whom the claim is made had express notice thereof…” Iowa Code § 564.1. Chapter 564
also articulates a procedure whereby the landowner can serve a notice on the party using, or
claiming a right to use, an easement and disrupt the 10 year statutory period. See Iowa Code
§§ 564.4 through 564.8.
F. Easement by necessity. 1. An easement by necessity may be established, regardless of whether an easement was
intended, if it can be shown that there was at one point in time unity of title between the
dominant and servient estate, which was later severed, and an easement is a necessity.
Nichols v. City of Evansdale, 687 N.W.2d 562, 568 (Iowa 2004).
2. The most common use of the easement by necessity is where a landowner has conveyed a
landlocked portion of his land to another party. Nichols v. City of Evansdale, 687 N.W.2d
562, 568 (Iowa 2004). “Under these circumstances, courts may imply an easement by
necessity across the seller’s land to provide the purchaser of the landlocked parcel with
access to a public road. Id.
G. Easement by implication. 1. “An easement by implication exists when the owner of two parcels employs one so as to
create a servitude on the other and then transfers one parcel without a specific grant or
reservation of easement in the conveyance.” Nichols v. City of Evansdale, 687 N.W.2d 562,
569 (Iowa 2004).
2. Stated more specifically, “[a]n easement by implication, upon severance of the unity of
ownership in an estate, arises when these factors appear (1) a separation of title; (2) a
showing that, before the separation took place, the use giving rise to the easement was so
long continued and obvious that it was manifest it was intended to be permanent; and (3) it
must appear that the easement is continuous rather than temporary, and that it is essential to
the beneficial enjoyment of the land granted or retained.” Rank v. Frame, 522 N.W.2d 848,
851 (Iowa Ct. App. 1994).
3. The intent of the parties is controlling when determining the extent of the easement by
implication. Rank v. Frame, 522 N.W.2d 848, 851 (Iowa Ct. App. 1994).
H. Termination, release or loss of easements. 1. If an easement is abandoned, it terminates. Allamakee County v. Collins Trust, 599 N.W.2d
448, 451 (Iowa 1999).
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2. If the easement was granted for a particular purpose, and that particular purpose is
accomplished, ceases to exist or is abandoned, the easement terminates. Beim v. Carlson,
209 Iowa 1001, 227 N.W.2d 421, 424 (Iowa 1929).
3. If the same owner acquires title to both the servient and the dominant estates, any existing
easements are extinguished. Tamm, Inc. v. Pildis, 249 N.W.2d 823, 837 (Iowa 1976).
4. The easement can be terminated voluntarily by the easement holder agreeing to release the
easement. One method for accomplishing such a release is through a quit claim deed signed
by the easement holder. 1 MARLIN M. VOLZ, JR., IOWA PRACTICE SERIES §14:8 (2009-2010
ed.).
XIII. COVENANTS
A. Covenants may be found in the deed itself, or may be set out in a separate recorded instrument.
B. A covenant is either affirmative, meaning it requires the covenanter to do something, or negative,
meaning it requires that the covenanter not do something. RESTATEMENT (THIRD) OF PROP.:
SERVITUDES § 1.3 (2000). “A ‘restrictive covenant’ is a negative covenant that limits permissible
use of land.” Id.
C. “Courts of equity will enforce a restrictive covenant in conveyances of real estate where the
intention of the parties is clear in creating them and [the] restrictions are reasonable.” Thodos v.
Shirk, 248 Iowa 172, 79 N.W.2d 733, 736 (Iowa 1956).
D. However, the Stale Uses and Reversions Act (described in Section II(c)(iv) of this outline)
applies to covenants and may bar enforcement of the covenant. Fjords North, Inc. v. Hahn, 710
N.W.2d 731, 735 (Iowa 2006). Additional defenses to enforcement of covenants include, but are
not necessarily limited to, abandonment, acquiescence, laches and estoppel. Thodos at 739-41.
Furthermore, where a building restriction is involved, the Court may refuse to enforce the
covenant if there has been “a change in the character of the surrounding neighborhood sufficient
to make it impossible any longer to secure in a substantial degree the benefits sought to be
realized through the performance of the building restriction.” Id. at 742.
E. A covenant will run with the land if it “is the intention of the parties to impose a servitude upon
the land as distinguished from a personal promise of the present owner.” Thodos at 736. “As a
general rule, if the required performance touches and concerns the land, and tends necessarily to
enhance its value or render it more beneficial to the owner for the use contemplated, it is a
covenant running with the land.” Id. at 739.
F. A property use that is permitted by a zoning ordinance may still be prohibited by a restrictive
covenant. Burgess v. Magarian, 214 Iowa 694, 243 N.W. 356, 358 (Iowa 1932).
XIV. LAND USE AND DEVELOPMENT
A. Condominiums
1. Iowa Code Chapter 499B is known as the “Horizontal Property Act” and governs
condominiums in Iowa.
2. In order to form a condominium development, all of the owners or all of the lessees of the
parcel of real property must file a declaration to submit the property to the horizontal property
regime with the county recorder of the county in which the property is located. Iowa Code §
499B.3.
a. The necessary contents of the declaration are enumerated in Iowa Code section 499B.4.
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b. Documents to be attached to the declaration include: a full and exact copy of the floor
plan of the building and a true copy of the bylaws under which the property will be
governed. Iowa Code §§ 499B.6 and 499B.14.
i. The necessary contents of the bylaws are enumerated in Iowa Code section 499B.15.
ii. Bylaws cannot later be amended or modified unless the amendment or modification
is set forth in an amendment to the declaration and recorded. Iowa Code § 499B.14.
c. If the declaration seeks to convert an existing structure, it must be filed with either the
city where the structure is located, or the county if the structure is not located within a
city, at least sixty (60) days prior to recording the declaration with the county recorder.
Iowa Code § 499B.3. However, if the city or county, whichever is applicable, has no
building code, the declaration should instead be filed with the state building code
commissioner at least sixty (60) days prior to recording the declaration with the county
recorder. Id.
d. Once the declaration is filed with the county recorder, and for so long as the property
remains enrolled in the horizontal property regime, liens and encumbrances will not
attach to the entirety of the property, but can attach to the individual apartments and the
general and limited common elements appurtenant to the individual apartments. Iowa
Code § 499B.12.
3. Once the property is committed to the horizontal property regime, “each individual apartment
located in the building and the interests in the general common elements and limited common
elements if any, appurtenant thereto, shall constitute for all purposes a separate parcel of real
property and shall be as completely and freely alienable as any separate parcel of real
property is or may be under the laws of [the State of Iowa], except as limited by the
provisions of [Chapter 499B of the Code of Iowa].” Iowa Code § 499B.10.
a. The necessary contents of the deed to a single apartment in the condominium regime are
enumerated in Iowa Code section 499B.5.
b. When a condominium unit is the subject of a real estate sale, a statement of outstanding
condominium association fees for the condominium unit should be obtained from the
association and the closing statement should take into account any such outstanding fees,
due to the fact that unpaid association fees constitute a lien against the condominium unit.
See Iowa Code §§ 499B.17 & 499B.19.
c. Real estate taxes and special assessments are assessed against each individual apartment
and its share of the land and the general and limited common elements, rather than the
entire horizontal property regime. Iowa Code § 499B.11.
B. Cooperatives
1. The various forms of cooperative associations are governed by Iowa Code Chapters 497-
499A and 501-501A.
2. The Iowa Supreme Court has recently held that, where a multiple housing cooperative is
properly organized under Iowa Code Chapter 499A, the property is to be classified as
residential and taxed at residential property rates. Krupp Place 1 Co-Op, Inc. and Krupp
Place 2 Co-Op, Inc., v. Bd. of Review of Jasper County, 801 N.W.2d 9, 16 (Iowa 2011).
3. In so holding, the Krupp Court rejected the Board of Review’s argument that the Court
should “look beyond the mere act of filing papers of incorporation and look to the actual
operation of the property in classifying the property for tax purposes[,]” due to the fact that
no such “actual use” test was contemplated in the relevant statute. Id. at 14.
C. Divisions and Subdivisions of Land
1. When a parcel or tract of land is to be divided into two parcels by a conveyance or for tax
purposes, using a metes and bounds description, the grantor must have a plat of survey made
for the division, unless the grantor is an agency of the government or other party having
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eminent domain powers. Iowa Code § 354.4. If the grantor is an agency of the government
or other party having eminent domain powers, an acquisition plat is required instead of a plat
of survey. Id.
a. A plat of survey must comply with Iowa Code Chapter 355 (Standards for Land
Surveying), be reviewed by the county auditor and be recorded. Id.
b. The necessary contents of a conveyance of a parcel shown on a recorded plat of survey
can be found in Iowa Code § 354.5.
2. When a tract of land “is subdivided by repeated divisions or simultaneous division into three
or more parcels, any of which are described by metes and bounds description for which no
plat of survey is recorded[,]” a subdivision plat must be made, unless the division is made by
conveyance to a government agency for public improvements. Iowa Code § 354.6.
a. The subdivision plat must be given a succinct, unique name that is approved by the
auditor in the county in which the real property is situated. Id.
b. Further requirements for the content of the subdivision plat can be found in Iowa Code
section 354.6. See also Iowa Code section 354.11 (requiring certain documents to
accompany the subdivision plat at the time of recording).
c. “A proposed subdivision plat lying within the jurisdiction of a governing body shall be
submitted to that governing body for review and approval prior to recording.” Iowa Code
§ 354.8. Cf. Iowa Code 354.18 (requiring plats of survey and subdivision plats to be
recorded and filed with the county auditor and assessor).
i. The governing body has sixty (60) days from the date of the application for final
approval to approve or reject the subdivision plat. Iowa Code § 354.8.
ii. If the governing body refuses to approve the proposed subdivision plat, the applicant
has twenty (20) days in which to make an appeal to the district court. Iowa Code §
354.10.
d. A city may, by ordinance, establish an area up to two miles distance from the city
boundaries, wherein city review and approval of subdivision plats and plats of survey is
required. Iowa Code § 354.9. If the subdivision lies in a county that also regulates the
division of land, the subdivision plat or plat of survey must be submitted to both the
county and the city for approval. Id.
e. Certain land within the subdivision, such as streets, alleys and parks, may be dedicated to
the public if a dedication to the public by the proprietors is attached to the plat and the
dedication is approved by the governing body. Iowa Code § 354.19. Furthermore, “the
recording of a subdivision plat shall dedicate to the public any utility, sewer, drainage,
access, walkway, or other public easement shown on the plat.” Id.
D. Zoning
1. Zoning is “[t]he legislative division of a region, esp. a municipality, into separate districts
with different regulations within the districts for land use, building size, and the like.”
BLACK’S LAW DICTIONARY 779 (2nd
pocket ed. 2001).
2. Depending on the location of the real property, it may be governed by either a city or a
county zoning ordinance. See Iowa Code Chapters 335 (County Zoning) and Chapter 414
(City Zoning).
a. However, certain land used for agricultural purposes may be exempt from county zoning
ordinances. See Iowa Code § 335.2.
b. A city may extend its zoning ordinance to include unincorporated areas up to 2 miles
beyond the city limits, if there is no county zoning ordinance covering those areas. Iowa
Code § 414.23.
3. Prior to the acquisition of real property, any zoning ordinance covering the real property
should be reviewed in order to confirm that the use for which the real property is being
acquired is permissible under the relevant zoning ordinance.
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4. Where the property is being used in a certain manner, and a zoning ordinance is thereafter
adopted which makes that use illegal, the prior use of the property may be allowed to
continue as a non-conforming use. See City of Jewell Junction v. Cunningham, 439 N.W.2d
183 (Iowa 1989); City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008); 17
DAVID M. ERICKSON & CHRISTOPHER TALCOTT, IOWA PRACTICE SERIES § 13:8 (2009-2010
ed.).
5. Where development of a piece of property has commenced, and a zoning ordinance is
thereafter adopted which makes the prior plan of development illegal, the property owner
may be allowed to complete development of the property in accordance with the prior plan if
(1) the property owner made “substantial expenditures toward the use in question prior to the
zoning change; and” (2) the expenditures made were lawful. Quality Refrigerated Serv., Inc.,
v. City of Spencer, 586 N.W.2d 202, 206 (Iowa 1998). See also 17 DAVID M. ERICKSON &
CHRISTOPHER TALCOTT, IOWA PRACTICE SERIES § 13:9 (2009-2010 ed.).
6. If a city or county zoning ordinance exists, a board of adjustment must be appointed, which
has the following powers:
a. “To hear and decide appeals where it is alleged there is error in any order,
requirement, decision, or determination made by an administrative official
in the enforcement of [Chapter 335 or Chapter 414] or of any ordinance
adopted pursuant thereto.
b. To hear and decide special exceptions to the terms of the ordinance upon
which such board is required to pass under such ordinance.
c. To authorize upon appeal in specific cases such variance from the terms of
the ordinance as will not be contrary to the public interest, where owing to
special conditions a literal enforcement of the provisions of the ordinance
will result in unnecessary hardship, and so that the spirit of the ordinance
shall be observed and substantial justice done.” Iowa Code §§ 335.15 &
414.12.
7. Appeals to the board of adjustment must be made “within a reasonable time, as provided by
the rules of the board of adjustment…” Iowa Code § 335.13. See also Iowa Code § 414.10.
8. Persons aggrieved by the decision of the board of adjustment may file a petition with the
Court setting forth the grounds of any illegality within thirty (30) days of the board’s
decision. Iowa Code §§ 335.18 and 414.15.