Nearly all cities must manage nuisance properties in their community at some point. Such properties are unappealing, can cause surrounding property valuations to decline and create a poor image of the community. While nuisances are often easy to see, the process to remedy a nuisance can be lengthy.
It is important that cities follow proper legal procedures when doing so. The work may be tedious and time consuming, but in the end it is well worth it. The following is a rundown of nuisance abatment guidance – be sure to check our Nuisance Abatement Manual for full details and sample documents.
The Code of Iowa has several sections that describe a nuisance and the actions a city can take to remove the problem. In Chapter 657 of the Code, nuisances are defined in several ways, primarily stating that properties injurious and dangerous to health can be deemed a nuisance. While state law provides some basic definitions of nuisances, many cities have ordinances that define what they consider to be a nuisance in more detail. These ordinances often describe how long grass can be before it is in violation, what is considered a junk vehicle, or how a building is determined to be dangerous and dilapidated. The ordinances also explain the responsibility of property owners and what actions the city will take when a nuisance is identified.
City officials must decide how they will identify nuisances in the community. While the task of citing nuisances can be difficult, it is imperative that cities assign someone who can handle this job. Some larger cities are able to hire code enforcement officers, while smaller cities might need to assign this task to an existing employee or contract for the service. Some small cities also use elected officials to identify nuisances.
It is often wise for the city’s initial identification and notification of a nuisance to be done through an informal procedure. This could simply mean a city representative knocks on the property owner’s door or calls to let them know of the nuisance and how it violates the city code. In many cases, having a polite, respectful conversation will get the property owner to rectify the issue and is much more cost effective than starting the legal process. However, some property owners hesitate to allow a city official on their property to inspect a suspected nuisance. In those situations, cities may obtain an administrative search warrant to gain access. After the city attorney submits an application for the warrant, supported by an affidavit, a judge will hold a hearing and will only issue an order for the warrant if it shows proper cause. Please see the Links area at the top of this page for examples of documents needed during the administrative search warrant process.
Despite the city’s best informal efforts, there are times when a nuisance continues to be ignored. In these situations, the city must use one of several possible nuisance abatement processes. Under the administrative process, the city should first send a Notice to Abate Nuisance to the property owner, preferably by certified mail. The notice should include details on the nature of the nuisance and order that abatement occur within a specific time period. The notice should also advise the property owner of their right to request a hearing with the city council within a certain time period. Finally, the notice advises that if the nuisance is not abated and a hearing is not properly requested, the city may abate the nuisance and assess the costs against the property or file a civil citation to initiate a municipal infraction against the property owner.
It is recommended that the city only use the administrative nuisance abatement process for relatively minor nuisance matters. Examples of this type of work could include mowing weeds, cleaning up trash and debris, and clearing snow and ice from public sidewalks. If the nuisance is of a more serious nature, such as the removal and disposal of junk vehicles or the demolition of dangerous buildings, it is recommended the city use the municipal infraction process.
Section 364.22 of the Code details the municipal infraction process and how cities can use it. The process begins by the city serving the property owner a civil citation, which is also filed in court. The civil citation charges the property owner with maintaining a nuisance in violation of a particular city code section. The citation can request that the owner take specific action to abate the nuisance, request a civil penalty (not to exceed $750 for the first violation and up to $1,000 for succeeding violations) and that the owner be enjoined from future violations. The court can then approve a consent decree negotiated by the city and property owner that outlines how the owner will abate the nuisance. If the property owner fails to correct the nuisances agreed in the consent decree, or as ordered by the court, the court can hold the owner in contempt of court, impose a civil penalty, authorize the city to abate the nuisance and order that the city’s costs for abatement be assessed against the property or imposed as a personal judgment against the owner.
Assessing Abatement Costs
When assessing the costs of nuisance abatement, the city should first prepare an assessment schedule pursuant to Code Section 384.59. The schedule needs to include a description and parcel number of each lot to be assessed and the amount to be assessed against each lot. The legal descriptions and parcel numbers are necessary to ensure that the correct property is assessed. This information may be obtained from the county auditor. Once an assessment schedule is completed, the council shall meet, consider and adopt by resolution the assessment schedule. Specifically, this resolution must:
- Confirm and levy assessments
- State the number of annual installments (if any), not exceeding 10, into which the assessments of $500 or more are divided
- Provide for interest on all unpaid installments at a rate not exceeding that set by the state treasurer
- State the time when assessments are payable
- Direct the city clerk to certify the final assessment schedule to the treasurer of the county and to publish notice of the schedule once each week for two consecutive weeks. The first publication shall not be more than 15 days from the date of filing of the final schedule.
A city is allowed to accumulate abatement costs until there is a sufficient amount to justify the procedure. This provides a measure of needed flexibility for small cities. A source of assistance in this process is your county treasurer’s office. In many cases they can provide assistance in understanding the process.
On or before the date of the second publication of the assessment schedule, the clerk is required to send, by mail, a copy of the notice to each property owner identified on the schedule. The notice is required to include a statement that assessments may be paid in full or in part without interest within 30 days after the date of the first notice of the assessment schedule. Thereafter, all unpaid assessments shall bear interest as determined by the council, but not exceeding the amount set by the treasurer of the state pursuant to Code of Iowa Section 74A. The notice is also required to state that the property owners may elect to pay any installment semiannually in advance. If a property is shown by the records to be in the name of more than one owner at the same mailing address, a single notice may be mailed to all owners at that address. The Code specifically states that failure to receive a mailed notice is not a defense to the assessment. Once completed, the clerk must forward the certified assessment schedule to the county treasurer for processing.
A person with interest in a property subject to the special assessment has 20 days from the date the resolution was passed to test the regularity of the proceedings or the legality of the assessment by filing a petition with the district court in the county the property is located. A property owner may also appeal the amount of the assessment at any time during the proceedings, up to 20 days after the date of the second publication of the notice.
Tax Sales and Abandoned Properties
Cities might also be forced to deal with properties where the owner has abandoned the property and stopped paying property taxes, resulting in the county treasurer putting the property up for tax sale. Chapter 446 of the Code allows cities to negotiate with the purchaser of the tax sale certificate for voluntary assignment of a tax sale certificate.
Cities can also acquire abandoned residential properties at tax sales and assign the certificate to someone who demonstrates the intent to rehabilitate the property or build a new structure. There are various options for cities when using Chapter 446, and cities should carefully review how they wish to proceed before beginning the tax sale process. Keep in mind, under each tax sale process property owners have the right to redeem their property by paying any outstanding taxes or other obligations within a prescribed period of time.
Award of Title to Abandoned Property by Court
Section 657A.10A of the Code of Iowa allows cities to be awarded title to abandoned property. Under this process the city must petition the court to enter judgment awarding title to the abandoned property to the city (see below for what constitutes “abandoned” in this case). The petition must include a legal description of the property and filed with the district court of the county in which the property is located. The city must also serve notice on the owner and any other named respondents by certified mail and by posting notice in a conspicuous place on the building.
- The city may request a hearing no sooner than 60 days after filing the petition. In determining whether a property is abandoned, the court shall consider the following:
- Whether any property taxes or special assessments were delinquent when the petition was filed
- Whether any utilities are currently being provided
- Whether the building is unoccupied
- Whether the building meets the city’s housing code for being fit for human habitation, occupancy or use
- Whether the building is exposed to the elements such that deterioration of the building is occurring
- Whether the building is boarded up
- Past efforts to rehabilitate the building and grounds
- The presence of vermin, accumulation of debris and uncut vegetation
- The effort expended by the petitioning city to maintain the building and grounds
- Past and current compliance with orders of the local housing official
- Any other evidence the court deems relevant
If the court finds that the property is abandoned, the court can enter judgment awarding title to the property to the city “free and clear of any claims, liens, or encumbrances held by the respondents”. The court can also grant title to the city if the city is able to establish that all parties with an interest in the property have received proper notice and either consented to the entry of awarding title to the city or did not make a good faith effort to comply with the order of the city within 60 days after the petition was filed.
This process can be effective in removing blighted and nuisance properties that are detrimental to the community. It gives the ability to the city to put such properties in the hands of developers or organizations that are committed to building new structures that return the property to an active status. However, city officials must understand that until a property has a new owner the city will be responsible for maintenance and upkeep as well as the potential that a new owner may not be identified immediately, leaving the property empty until that occurs.
Role of the City Attorney
Nuisance abatement is a legal action undertaken by the city against a private property owner. For this reason, qualified legal assistance is an absolute necessity. At the very beginning, the city attorney needs to be engaged for advice on establishing, implementing and enforcing the abatement program. Notonly does the nuisance ordinance need to reflect the standards of the community, it also needs legal underpinnings. As with all legal matters, cities are urged to consult their city attorney to ensure that the nuisance abatement and assessment procedures are correctly followed.