COVID-19 Frequently asked questions for REALTORS®

Some additions and edits made friday, May 29 3:00pm. See individual questions for date/time. 

These FAQs include updates from the Governor’s Proclamation impacting real estate, resources for brokers, and resources for transactional questions. 

Disclaimer:  The questions and answers posted below are intended to be a general educational tool for our members regarding frequently asked questions and answers to some legal questions that are of importance to REALTORS during the COVID-19 Pandemic. The responses to questions are general and should not be relied upon in any specific legal situation you or a client may be facing. Independent legal counsel should be obtained for such situations. Although we are monitoring the COVID-19 situation frequently, things change by the minute and we cannot guarantee that all information is the most updated information available related to that question.

Q: IS THERE AN EVICTION MORATORIUM UNDER THE CARES ACT? WHAT PROPERTIES DOES THIS APPLY TO? HOW LONG DOES IT LAST?

Answer. The CARES Act imposed a moratorium on initiating eviction proceedings and charging fees for late payment or nonpayment of rent on a broad variety of multifamily housing. All properties that are covered by the Violence Against Women Act (“VAWA”) – which includes all public housing, housing that receives Housing Choice Vouchers or Section 8 rental assistance and virtually all other housing assisted or supported by the U.S. Department of Housing and Urban Development (“HUD”) or other federal agencies, including low income housing tax credit properties – are subject to the moratorium. In addition, all properties that have a “Federally backed” mortgage loan -- which includes a loan that is insured by HUD and loans that are held or securitized by Fannie Mae or Freddie Mac – are also subject to the eviction moratorium. Thus, the moratorium covers the vast majority of rental housing in the United States. This moratorium ends on July 25, 2020. More information about this moratorium available here: https://www.nar.realtor/political-advocacy/coronarivus-housing-providers-faqs.

Important Note: Even though the Iowa eviction moratorium has expired, a tenant cannot be evicted for non-payment of rent if they fall under the moratorium in the CARES ACT.

Q: I AM A REALTOR® THAT MANAGES RENTAL PROPERTY. ARE EVICTIONS NOW ALLOWED IN IOWA?

AnswerThe Governor did suspend certain evictions during the COVID-19 State of Public Health Disaster in March. However, the provisions which suspended a landlord’s ability to evict a tenant for non-compliance of a rental agreement, and failure to pay rent, have been lifted. In other words, the provisions allowing a landlord serve notice to terminate a lease agreement and to file an action for Forcible Entry and Detainer are once again in effect. Evictions are no longer suspended under Iowa Law.

Note: You need to be sure a property is not covered by the CARES Act moratorium, as that moratorium currently extends until July 25, 2020. The lifting of the Iowa moratorium on evictions will not affect those properties subject to this federal moratorium. See the FAQ about the Federal Moratorium under the CARES ACT for more information.

Q: WILL COURT HEARINGS RELATING TO EVICTIONS EXPERIENCE ANY DELAY?

Answer. A court procedure to evict a tenant is called “Forcible Entry and Detainer (Hereafter ‘FED’).” Iowa Code section 648.5(1) requires the date of a hearing for FED cases to be set between 8 and 15 days from the filing date. There are currently almost 700 pending FED cases scheduled and waiting to be heard. There is also an expectation that more will be filed now that the moratorium on evictions has been lifted. For these reasons, anyone filing an FED action should not expect the hearing to be set during that time period.

Under the Iowa Supreme Courts May 22 Order found here https://www.iowacourts.gov/collections/499/files/1093/embedDocument/, an FED hearing currently scheduled prior to July 13 must be postponed until after July 13. One exception would be if the Court hearing the case decides to hold the hearing by video or telephonically, which the order allows at local discretion.  

Q: I AM A REALTOR WHO MANAGES PROPERTY AS A LANDLORD. WHAT IF THE FORCIBLE ENTRY AND DETAINER ACTION I FILED DOES NOT GET HEARD WITHIN 8-15 DAYS… IS IT GOING TO GET DISMISSED?

Answer. The Supreme Court’s May 22 Supervisory Order stated that the requirement a FED hearing be held within fifteen days is not jurisdictional, and that it is not a bar to an FED action being heard if the court, for scheduling reasons or to comply with the state and federal moratoria, is unable to hear the action by the deadline established in section 648.5(1), which is certainly good news for Landlords.

Q: WHAT IS THE PEACEABLE POSSESSION BAR WHEN FILING AN ACTION FOR FORCIBLE ENTRY AND DETAINER, AND WHAT DID THE SUPREME COURT SAY ABOUT IT IN ITS RECENT SUPERVISORY ORDER?

Answer. The May 22 Supervisory Order of the Iowa Supreme Court order discussed the “peaceable possession bar” in Iowa Code Chapter 648.18. That Code section provides that “thirty days peaceable possession with knowledge of the plaintiff after the cause of action accrues is a bar to this proceeding.” The Order clarifies that this bar does not apply where the plaintiff could not have initiated proceedings under chapter 648 due to a state or federal moratorium.

Q: IF I HAVE TO COMMENCE A FORCIBLE ENTRY AND DETAINER ACTION FOR A PROPERTY I MANAGE. DOES A LANDLORD REALLY NEED TO FILE THE “CARES ACT LANDLORD VERIFICATION” WITH THE COURT?

Answer.  The answer is yes. The Cares Act Landlord Verification Form can be found here: https://www.iowacourts.gov/collections/499/files/1101/embedDocument/. The Supreme Court Order, in paragraph 38, says that

“Any plaintiff bringing an FED action under chapter 648 for nonpayment of rent after the date of this order shall submit a CARES Act verification in a form approved by this court. This requirement shall continue in effect until further order of this court. The information provided in the CARES Act verification shall be for the purpose of assisting the court in regard to whether the CARES Act applies to the matter before the court; however, the CARES Act verification is not a jurisdictional requirement and any defect with such verification shall not divest the court of subject matter jurisdiction over the matter.”

Q: IS THERE STILL A MORATORIUM ON FORECLOSURES IN THE STATE OF IOWA?

Answer. The Governor did temporarily suspend the commencement of foreclosure proceedings and the prosecution of ongoing foreclosure proceedings on residential, commercial, and agricultural real property located in the state of Iowa pursuant to Iowa Code Chapters 646, 654, 655A, and 656 during the COVID-19 Emergency Proclamations. This suspension, otherwise called a moratorium on foreclosures, officially lapsed effective May 27, 2020. 

Note: Discuss with your lender whether there are other protections based on the type of loan involved. Just because the Iowa Moratorium lifted does not mean other federal protections may exist, depending on your loan.

Q: IS THERE ANY HELP OUT THERE FOR A TENANT WHO CANNOT PAY RENT OR A HOMEOWNER WHO CANNOT MAY THEIR MORTGAGE DUE TO COVID-19?

Answer. Governor Reynolds has allocated federal CARES Act funds to assist Iowans who have been economically impacted by COVID-19 and may be facing housing hardships. This program will provide short-term relief to income-eligible renters and homeowners who are at risk of eviction or foreclosure. More information about this program, including eligibility requirements, can be found here https://www.iowafinance.com/covid-19-iowa-eviction-and-foreclosure-prevention-program/.

Question: Are real estate open houses allowable under the Governor’s Proclamation?

Answer: The Proclamation does not specifically address real estate showings or open houses. However, the Proclamation forbids all social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events of more than 10 people. There certainly are questions about open houses and their advisability in light of the Governor’s Proclamations to combat the spread of COVID-19.  The National Association of REALTORS® has very helpful open house guidance available: https://www.nar.realtor/open-house-guidance-during-covid-19. Individual brokers remain responsible to make the decisions on how to handle open houses and showings during COVID-19. 

Question: What if somebody is sick, such as a home inspector, and they can’t inspect a home within the time frames of our purchase agreement? What if a party has COVID-19? What if we can’t close by the required date?

Answer: These types of questions are starting to develop and every situation requires a detailed analysis to figure out how to proceed. IAR has created a standard form for our members called the “Iowa REALTORS® COVID-19 Addendum/Amendment.” While the form was created to provide a tool to deal with the types of situations posed in this question, whether or not it should be used is a decision your client and their attorney should make. All members should discuss this form with their brokers before implementing it. Use of the form is not required by IAR. For more about this form, go to https://www.iowarealtors.com/news/new-covid-19-form.

Question: What does the Governor’s Proclamation say about remote notarization?

Revised April 14, 8:30 a.m.

Answer: The Iowa REALTORS® worked tirelessly to help ensure the passage of remote notarization legislation. The legislation was passed during previous legislative sessions and is set  to go into effect July 1, 2020. The legislation eliminates the requirement that a notary perform a notarial act in person, and allows the act to be completed by a notary public when they perform the act with technology that allows the notary public to communicate with a remotely located individual simultaneously by sight and sound, or which facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment consistent with other applicable law, among other requirements. 

Under current law, a notarial act must be completed in person. The Proclamation from the Governor temporarily suspends the personal appearance requirement only to the extent that the notarial act complies with the requirements of the provisions of section 6 of 2019 Iowa Actions Chapter 44 (Senate File 475). Under the Governor’s Proclamation, remote notarial acts must conform to all the provisions in Iowa Administrative Code 721-43, Iowa Code chapter 9B, and every provision of Section 6 of Senate File 475, passed in 2019. In other words, a notary public can remotely notarize documents now under this Proclamation within the confines of all these rules mentioned in this anwer. A notary public who performs a notarial act under this Proclamation remotely must also comply with the guidance from the Iowa Secretary of State, issued March 24, 2020.

The Secretary of State's guidance requires:

  • Use of a software service designed for the purpose of facilitating remote online notarization, as opposed to services that primarily offer video-conferencing ability (examples include eNotaryDox by Signix, Notarize, and DocVerify)

  •  That each notarial act be recorded and the recording be retained

  • A notary public must register with the Secretary of State’s Office before performing any remote notarial acts (application available at:  https://sos.iowa.gov/remotenotary)

  • A notary public must follow the training of the software service provider they select before performing any notarial acts remotely 

  • Video resolution must allow viewing of identity proofing documents clearly, as well as audio clarity to understand customer clearly

  • NOTE: It is a notary public’s responsibility to ensure they are performing remote notarizations correctly under the law, including requirements under existing law and the provisions added by the Proclamation. 

As REALTORS, it is important to be aware that these provisions do allow remote notarizations. A client who needs documents notarized can now have this done remotely with a notary public who follows the provisions explained above, and who complies with all provisions for notaires under Iowa Law. Understand that any notarial act must comply with these provisions to be valid and have effect.  The Secretary of State has created a Search for those able to do Remote Notarizations

The Secretary of State’s Guidelines attached below apply during this emergency waiver of the in-person requirement. A formal set of more-stringent provisions (the new remote notary law) is currently scheduled to take effect on July 1, 2020. Keep in mind that the actual remote notarization law does not take effect until July 2020, so we don’t exactly know at this time whether remote notarizations would continue if the emergency waiver under the proclamation ceases before July 2020.  Here is a link for the full guidance from the Secretary of State, so you as a REALTOR have a general understanding of the requirements of a notary who performs a notarial act for one of your clients in the future. 

 CAUTION: We are hearing that many lenders are prohibiting the use of remote online notarization. Consent must be obtained from the guaranteed lender prior to using remote notarization software to acknowledge title clearing documentation, conveyance instruments, or other documents that relate to the closing.

Question: Did the Governor’s Proclamation change any requirements for Power of Attorney? 

Answer: The Governor’s Proclamation suspends the provisions of Iowa Code Section 633B.105, which govern execution of a power of attorney, to the extent that they require the physical presence of a testator, settlor, principal, witness, or other person, if the person is present in a manner in which the witness or other person can see and hear the acts by electronic means, such as a video conference, Skype, Facetime, Zoom, or other means, whether or not recorded.  

Question: Why isn’t IAR providing specific orders on how our industry should proceed with business during this time?

The Iowa Association of REALTORS® is a trade organization that represents approximately 7,500 REALTORS® across our State. As a trade organization, we do not get involved with the business practices of brokers and every broker remains responsible to determine how their business will respond to COVID-19. However, IAR continues to provide informative information and best practices that brokers and all REALTORS® may utilize to help in these difficult times. 

Question: I am a broker. What should I be doing to make sure we are prepared for any COVID-19 related issues, and how can I ensure I protect my business and the public?

While the Iowa Association of REALTORS® does not provide specific order for how you run your business, there are a variety of resources that are generally available relating to COVID-19 from the National Association of REALTORS®. You should visit https://www.nar.realtor/coronavirus. You will find all sorts of guidance for REALTORS® and open house guidance. Some of the guidance includes how to communicate with clients about COVID-19, practices for showings, precautions brokers should consider taking, and even a COVID-19 sample preparedness plan that NAR says you are free to adapt and implement in your workplace. 
   

Question: I have so many questions…

Added March 25, 10:45 a.m.

May I limit in-person showings to pre-qualified buyers? Are there any risks or potential liability to showing a property to a buyer virtually? Does the fact that someone had COVID-19 in the home create disclosure obligations? What if I manage property and tenants do not want prospective tenants to view the property out of COVID-19 concerns?

There are so many questions, and many are truly unprecedented. Given that some of these questions are matters of first impression, it can be tricky to give sure answers. It is important to talk with your broker and with private legal counsel to address some of these concerns. 

However, the National Association of REALTORS have published a great resource, called “Transaction Guidance During COVID-19.” https://www.nar.realtor/transaction-guidance-during-covid-19. Understand this is general guidance and is not legal advice. Take a look at this extensive guide which discusses a lot of questions that are developing in real estate markets across the Country. 

 

Question: The IAR COVID-19 Addendum has a section where it says 30 or _____ days, and 60 or _____ days. How should those be filled out?

Added March 25, 10:45 a.m.

Answer: While the parties remain fully responsible to ensure the form works specific to their transaction, the intent of the IAR form is that where the form says "30 or ___" days, then that means 30 days unless you fill in the blank with a different number of days. If you fill out the ____ with a different number - for example, 17 - by filling in 17 that is now the number of days since the parties determined the default 30 days was not the proper number. The same would go for the "60 or ____" day blank on the form.

Although you are not allowed to alter an IAR Standard form outside filling in the fillable blanks - it would be a permissible use of the form to cross out, for example, the number '30' if the parties in your transaction decide to fill the blank in “30 or ___” days with a different number. If the parties believe such a cross out helps make the form more clear, such action would be permissible under the IAR Copyright and the parties could simply initial by the cross out of that number if they so wish.  However, it is the opinion of IAR that such a cross out would not be required as the form makes it clear that if you decide to fill in that blank with a number besides the default, you are forgoing the default number of days and choosing a different amount of days. However, how the form is used in a specific transaction is up to your client and any advice of their attorneys.  

Question: I am an Independent Contractor. I am not able to work due to COVID-19. Do I qualify for any type of unemployment benefits or relief?

April 6, 2020  4:00 p.m.

The CARES Act, which was recently signed into law by President Trump, says that Self-employed individuals, independent contractors, and other individuals who are unable to work as a direct result of COVID-19 public health emergency, and would not qualify for regular unemployment benefits under state law, may be eligible to receive “Pandemic Unemployment Assistance.” You can read more at NAR's Unemployment Assistance CARES Act FAQs page to see what this all means for REALTORS®.

Information is available on Iowa Workforce Development’s website to file a claim for Pandemic Unemployment Assistance. The information on this page can change by the hour, so please review it regularly at this link: https://www.iowaworkforcedevelopment.gov/COVID-19. There is also a 30 minute video called “How to File for Unemployment Benefits if You’re Self Employed” . If you need further guidance, contact information for Iowa Workforce Development is available on their website. You can discuss this with your legal counsel if you need advice.