Jan E. Beran, Attorney at Law
Highlights of
Nebraska Residential Landlord Tenant Law
Disclaimer: The information contained on this page relates to Nebraska Residential Landlord and Tenant Law only. It is provided for informational purposes only and is not intended as specific legal advice. The reader is encouraged to consult competant legal counsel and only after complete and candid discussion will legal advice be rendered.
1999 Copyright: The following outline is protected by copyright laws. Further distribution without permission from owner (Jan E. Beran, Attorney at Law) is strictly prohibited.
Source: The following outline was presented at recent seminars dealing with residential landlord and tenant law.
I. Introduction
A. Residential Landlord and Tenant Act citation.
Neb. R.R.S. §76-1401 through §76-1449
Known as the "Uniform Residential Landlord and Tenant Act" commonly referred to as URLTA.
B. Purposes of Act and Construction
1. Purpose is to "simplify, clarify, modernize and revise the law governing the
rental of dwelling units" as well as specifying the rights and obligations of
the parties
2. Unifies the law among the states which enact it.
a. Model law not mandatory but recommended.
b. Portions of the model act, adopted by about 35 states.
C. Exclusions from the Act: Public or private institutions for detention, medical
cause, geriatric, education, counseling, religious cause; Occupancy pending
sale; Fraternal or social organizations; Hotel/Motel; Employee of landlord;
(resident manager & maintenance); Condominium and cooperatives;
Agricultural; Lease of 5 years or more.
D. Leases under URLTA are periodic tenancies.
1. Week to week
2. Month to month
II. Formalities of Lease drafting
A. Written v. Oral
B. Statute of frauds
C. Parol evidence
III. Terms and conditions of rental agreements
A. Basic contract principles
1. Competent parties:
a. Legal age (19)
b. Not incompetent
2. Subject matter
3. Legal consideration
4. Mutuality of agreement
5. Mutuality of obligation
B. Essential elements of lease
1. A reversion in landlord
2. The creation of an estate in the tenant
3. The transfer of exclusive possession and control of the premises
4. Express or implied (by acts and conduct) contract
C. Rent
1. Fair rental value for the use and occupancy. If occupancy has
commenced but rental has not been agreed upon, the tenant may be
required to pay fair rental value.
2. Payable without demand, unless otherwise specified:
a. at the dwelling
b. on the first of the month
D. Term:
1. Month to month (or week to week)
2. Allowable term up to one year, if exceeds one year, must comply with the
statute of frauds.
3. Automatically converts to month to month after expiration of a term
4. If landlord or tenant desires to terminate at the end of the term, a notice
terminating the lease may be given at least thirty days prior to the
expiration date.
5. Covenants and conditions of lease or rent may not be altered until after
the expiration of the term of the lease except by mutual agreement.
E. Use of Premises
1. Not for operation of business
2. Not for illegal purposes
3. For residential purposes only
F. Security Deposits - Prepaid rent
1. One month rent (LB175 may change to two months)
2. Pet deposit
a. one-fourth month's rent (LB175 may change to one-half month)
b. seeing eye and hearing dog deposit one-fourth month's rent
3. Pre-paid rent, no limit
4. Refund of Deposit and Notification of Allocation of Deposit to Damages
and Unpaid Rent
a. Demand by tenant and notice of forwarding address
b. Within 14 days
c. Non-compliance:
(1) Landlord may be required to return deposit and pay tenant's
attorney fees
(2) Landlord (according to statute) retains claim for damages but
must file counterclaim and prove was damaged
G. Prohibitions. See Neb. R.R.S. §76-1414 and §76-1415.
1. Cannot waive or forego rights or remedies under URLTA
2. Cannot confess judgment
3. Cannot agree to pay landlord's or tenant's attorney fees
4. Cannot exculpate or limit the landlords liability for active or actionable
negligence or indemnify the landlord for the negligence of the landlord.
5. Cannot enforce a landlord lien or distraint for rent.
IV. Landlord's Obligations:
A. Landlord to maintain fit premises. Sec. 76-1419(1). Landlord shall:
1. Sec. 76-1419(1)(a) Substantially comply, after written or actual notice, with
the requirements of the applicable minimum housing codes materially
affecting health and safety;
2. Sec. 76-1419(1)(b) Make all repairs and do whatever is necessary, after
written or actual notice, to put and keep the premises in a fit and habitable
condition;
3. Sec. 76-1419(1)(c) Keep all common areas of the premises in a clean and
safe condition;
4. Sec. 76-1419(1)(d) Maintain in good and safe working order and condition
all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and
other facilities and appliances, including elevators, supplied or required to
be supplied by him;
5. Sec. 76-1419(1)(e) Provide and maintain appropriate receptacles and
conveniences for the removal of ashes, garbage, rubbish, and other waste
incidental to the occupancy of the dwelling unit and arrange for their
removal from the appropriate receptacle; and
6. Sec. 76-1419(1)(f) Supply running water and reasonable amounts of hot
water at all times and reasonable heat except where the building that
includes the dwelling unit is not required by law to be equipped for that
purpose, or the dwelling unit is so constructed that heat or hot water is
generated by an installation within the exclusive control of the tenant and
supplied by a direct public utility connection.
7. Sec. 76-1419(1) (continued): If there exists a minimum housing code
applicable to the premises, the landlord's maximum duty under this section
shall be determined by subdivision (1)(a) of this section. The obligations
imposed by this section are not intended to change existing tort law in the
state.
8. Sec. 76-1419(2) The landlord and tenant of a single-family residence may
agree that the tenant perform the landlord's duties specified in
subdivisions (e) and (f) of subsection (1) and also specified repairs,
maintenance tasks, alterations, and remodeling, but only if the transaction
is in writing, for good consideration, entered into in good faith and not for
the purpose of evading the obligations of the landlord.
9. Note any agreement between landlord and tenant to perform landlord's
duties must:
a. Be for good consideration
b. Be in good faith
c. BE IN WRITING. If not written, this may make the agreement
unenforceable. Unlike the statute of frauds, this section does not
have a "partial performance" provision. While courts may honor
performance, follow the statute.
d. In addition, the following matters should be considered:
(1) Specifically identify the repairs/maintenance to be made.
(2) Provide for certain subcontractors/suppliers.
(3) Specify the consideration (not simply $ per hour).
(4) Specify a completion date.
(5) Use a punch list or progression list.
(6) If repairs are pre-occupancy or sweat equity in deposit, specify
condition are to be in upon termination. May eliminate a
misunderstanding that tenant must only return the premises to
the condition that the premises were in at the date the
occupancy commenced (pre-repairs).
B. Sec. 76-1419(3) The landlord and tenant of a dwelling unit other than a
single-family residence may agree that the tenant is to perform specified
repairs, maintenance tasks, alterations, or remodeling only if:
1. Sec. 76-1419(3)(a) The agreement of the parties is entered into in good
faith and not for the purpose of evading the obligations of the landlord and
is set forth in a separate writing signed by the parties and supported by
adequate consideration; and
2. Sec. 76-1419(3)(b) The agreement does not diminish or affect the
obligation of the landlord to other tenants in the premises.
C. Sec. 76-1419(4) Notwithstanding any provision of sections 25-21,219 and
76-1401 to 76-1449, a landlord may employ a tenant to perform the obligations
of the landlord.
V. TENANT OBLIGATIONS: Sec. 76-1421. Tenant to maintain dwelling unit.
A. The tenant shall:
1. Sec. 76-1421(1) Comply with all obligations primarily imposed upon
tenants by applicable minimum standards of building and housing codes
materially affecting health or safety;
2. Sec. 76-1421(2) Keep that part of the premises that he occupies and uses
as clean and safe as the condition of the premises permit, and upon
termination of the tenancy place the dwelling unit in as clean condition,
excepting ordinary wear and tear, as when the tenancy commenced;
3. Sec. 76-1421(3) Dispose from his dwelling unit all ashes, rubbish,
garbage, and other waste in a clean and safe manner;
4. Sec. 76-1421(4) Keep all plumbing fixtures in the dwelling unit or used by
the tenant as clean as their condition permits;
5. Sec. 76-1421(5) Use in a reasonable manner all electrical, plumbing,
sanitary, heating, ventilating, air conditioning and other facilities and
appliances including elevators in the premises;
6. Sec. 76-1421(6) Not deliberately or negligently destroy, deface, damage,
impair or remove any part of the premises or knowingly permit any person
to do so;
7. Sec. 76-1421(7) Conduct himself and require other persons on the
premises with his consent to conduct themselves in a manner that will not
disturb his neighbors' peaceful enjoyment of the premises; and
8. Sec. 76-1421(8) Abide by all bylaws, covenants, rules or regulations of
any applicable condominium regime, cooperative housing agreement, or
neighborhood association not inconsistent with landlord's rights or duties.
B. Pay rent:
1. Rent includes all payments to be made to the landlord under the rental
agreement.
2. Unless otherwise agreed, rent shall be the fair market value for the use
and occupancy of the premises.
VI. Miscellaneous provisions
A. Retaliation by landlord Sec. 76-1439. Retaliatory conduct prohibited. (1)
Except as provided in this section, a landlord may not retaliate by increasing
rent or decreasing services or by bringing or threatening to bring an action for
possession after:(a) The tenant has complained to a government agency
charged with responsibility for enforcement of a minimum building or housing
code of a violation applicable to the premises materially affecting health and
safety; or (b) The tenant has organized or become a member of a tenants'
union or similar organization. (2) If the landlord acts in violation of subsection
(1), the tenant is entitled to the remedies provided in section 76-1430 and has
a defense in action against him for possession. Nothing in this section shall be
construed as prohibiting reasonable rent increases or changes in services
notwithstanding the occurrence of acts specified in subsection (1).
B. (3) Notwithstanding subsections (1) and (2), a landlord may bring an action for
possession if: (a) The violation of the applicable minimum building or housing
code was caused primarily by lack of reasonable care by the tenant or other
person in his household or upon the premises with his consent; (b) The tenant
is in default in rent; or (c) Compliance with the applicable minimum building or
housing code requires alteration, remodeling, or demolition which would
effectively deprive the tenant of use of the dwelling unit. The maintenance of
the action does not release the landlord from liability under subsection (2) of
section 76-1425.
C. Access: Sec. 76-1423. Access. (1) The tenant shall not unreasonably withhold
consent to the landlord to enter into the dwelling unit in order to inspect the
premises, make necessary or agreed repairs, decorations, alterations, or
improvements, supply necessary or agreed services, or exhibit the dwelling unit
to prospective or actual purchasers, mortgagees, tenants, workmen, or
contractors. (2) The landlord may enter the dwelling unit without consent of the
tenant in case of emergency. (3) The landlord shall not abuse the right of
access or use it to harass the tenant. Except in case of emergency or if it is
impracticable to do so, the landlord shall give the tenant at least one day's
notice of his intent to enter and enter only at reasonable times. (4) The
landlord has no other right of access except by court order, and as permitted
by subsection (2) of section 76-1432, or if the tenant has abandoned or
surrendered the premises. Sec. 76-1438. Landlord and tenant remedies for
abuse of access or entry. (1) If the tenant refuses to allow lawful access, the
landlord may obtain injunctive relief to compel access, or terminate the rental
agreement. In either case, the landlord may recover actual damages and
reasonable attorney's fees. (2) If the landlord makes an unlawful entry or a
lawful entry in an unreasonable manner or makes repeated demands for entry
otherwise lawful but which have the effect of unreasonably harassing the
tenant, the tenant may obtain injunctive relief to prevent the recurrence of the
conduct, or terminate the rental agreement. In either case, the tenant may
recover actual damages not less than an amount equal to one month's rent and
reasonable attorney's fees.
D. Casualty and destruction of property
1. Sec. 76-1429. Fire or casualty damage. (1) If the dwelling unit or
premises are damaged or destroyed by fire or casualty to an extent that
enjoyment of the dwelling unit is substantially impaired, the tenant may:
(a) Immediately vacate the premises and notify the landlord in writing
within fourteen days thereafter of his intention to terminate the rental
agreement, in which case the rental agreement terminates as of the date
of vacating; or (b) If continued occupancy is lawful, vacate any part of the
dwelling unit rendered unusable by the fire or casualty, in which case the
tenant's liability for rent is reduced in proportion to the diminution in the
fair rental value of the dwelling unit. (2) If the rental agreement is
terminated the landlord shall return all prepaid rent and security
recoverable under section 76-1416. Accounting for rent in the event of
termination or apportionment is to occur as of the date of the casualty.
Notwithstanding the provisions of this section, the tenant is responsible for
damage caused by his negligence.
2. Under Common Law, the tenant was still responsible for the rent and may
have had an obligation to rebuild.
3. Tenant's Options:
a. Termination of lease: vacate immediately and notify landlord within
14 days. Rent abates to the date of the fire or casualty.
b. Continue to occupy and reduce rent
E. Abandonment
1. Defining Abandonment: 76-1432 (3) Total absence from the premises
without notice to landlord for one full rental period or thirty days, whichever
is less, shall constitute abandonment. However, case law may supersede
the statutory definition by stating that the section does not displace
common law. Mason v. Shumacher, 231 Neb. 929 (1989) suggests that
we must look to the subjective intent of the tenant.
2. Disposition of Personal Property Landlord and Tenant Act.
In the event that a tenant has abandoned the premises and has left
property in the premises, the landlord has a duty to store such property.
Neb. Rev. Stat. § 69-2306 (1996). The Act is quite specific in terms of the
required procedure, notices and the rules regarding to disposition of the
property. Care should be taken to follow the law to the letter:
a. Inventory the property. The property may then be moved into
storage.
b. Notice must be delivered to any person who the landlord reasonably
believes to have an interest in the property. The notice must give
the owner of the property at least 7 days to reclaim the property if
the notice is delivered in person and at least 14 days to reclaim if the
notice is mailed. The statute sets out an acceptable form of the
notice and landlords are encouraged to use that form. The notice
should include the following.
(1) That reasonable costs of storage may be charged before the
property is returned.
(2) The location where the property may be claimed.
(3) The date on or before which such property must be claimed.
(4) The required statement as to the disposition of the property.
The content of the statement depends on the value of the
property. The statute specifies one notice for property believed
to be worth less than $250 or and another for property believed
to be worth $250 or more. See Neb. Rev. Stat. § 69-2305
(1993). (Note LB175 may change the amount to $500)
c. Disposition of the Property.
(1) If the property is worth less than $250, the property may be
disposed of as the landlord sees fit after the 14 days expires.
(2) If the property is worth $250 or more, the property will have to
be advertised and put up for public sale by competitive bidding.
(a) The time and place of the sale must be advertised
published once a week for two consecutive weeks and
held no sooner than 10 days after the first publication and
the last publication no less than five days before the sale.
(b) The proceeds, after deduction for the costs of storage,
handling, and sale, must be delivered to the State
Treasurer in the tenant's name or to the tenant if his or her
whereabouts are known. See Neb. Rev. Stat. § 69-2309
(1996).
3. Sec. 76-1432. Remedies for absence, nonuse, and abandonment. (1) If
the rental agreement requires the tenant to give notice to the landlord of
an anticipated extended absence in excess of seven days as required in
section 76-1424 and the tenant willfully fails to do so, the landlord may
recover actual damages from the tenant. (2) During any absence of the
tenant in excess of seven days, the landlord may enter the dwelling unit
at times reasonably necessary. (3) If the tenant abandons the dwelling
unit, the landlord shall take immediate possession and shall make
reasonable efforts to rent it at a fair rental. If the landlord rents the
dwelling unit for a term beginning prior to the expiration of the rental
agreement, it is deemed to be terminated as of the date the new tenancy
begins. Total absence from the premises without notice to landlord for one
full rental period or thirty days, whichever is less, shall constitute
abandonment.
VII. Residential Landlord and Tenant Notices:
A. URLTA Notices. Notices to the tenant must either be mailed first class postage
prepaid (regular mail) or delivered in hand. Neb. R.R.S. §76-1413(2)(c).
Notices to landlord are effective when delivered to the landlord's place of
business. As there is no requirement that the tenant or landlord accept
registered or certified mail, and URLTA allows service by regular mail, landlords
and tenants, unless required by the lease or other statute, should mail by first
class mail. Refusing to accept a notice by certified mail may be deemed to be
acceptable notice. You can obtain a Certificate of Mailing from the postmaster
if mailed from the post office and the requisite fee is paid. The certificate is
equivalent to a postmark. If the notice is posted at the premises or delivered
to a person not a party to the lease, a copy should (though not required by law)
be mailed. Remember, one purpose of URLTA is to simplify the law, use the
simpler method of delivering notice, regular first class mail.
1. Non-payment of rent, 3 Day Notice. If rent is unpaid when due the
landlord may issue a notice requiring the tenant to pay rent within 3 days
and advising the tenant that the landlord will terminate the rental
agreement if rent is unpaid.
2. Breach of Agreement, 14/30 Day Notice. If the tenant has breached the
rental agreement in any manner except the payment of rent, or has
violated any provision in of Neb. R.R.S. §76-1421 the tenant may be given
a 30 day notice of the termination of the rental agreement unless the
breach is remedied within 14 days.
3. Landlord's Breach of Agreement. If the landlord has breached the rental
agreement in any manner or has violated any provision of Neb. R.R.S.
§76-1425 the tenant may give a 30 day notice of the termination of the
rental agreement unless the breach is remedied within 14 days.
4. Subsequent breach of agreement, 14 Day Notice. If a breach of
obligation re-occurs within 6 months of a previous notice, the landlord may
give the tenant a 14 day notice of termination with no right to cure.
Similarly, the tenant may terminate on 14 day notice of landlord's repeat
violation.
5. Termination, 30 Day Notice. Landlords and tenants may terminate month-
to-month tenancies by giving the other a written notice of the intent to
terminate at least 30 days prior to the periodic rental date. In absence of
a provision specifying to the contrary, if rent is due on the 17th of the
month, the notice must be given prior to that date rather than the first.
6. Termination, 7 Day Notice. Rarely do we see week to week tenancies but
for those that do exist, this tenancy is terminated by giving the other
written notice of the intent to terminate at least 7 days prior to the periodic
rental date.
7. Modifications.
a. Rental Agreements which are month to month may be modified upon
30 days notice.
b. Rules and regulations may be modified during the lease term only if
"reasonable notice of its adoption is given to the tenant and it does
not work a substantial modification of his bargain". Neb. R.R.S. §76-
1422.
8. Waiver. Acceptance of rent from the tenant will act as a waiver of any
pending notice and the lease will be reinstated. If the tenant agrees that
the acceptance of the rent will not constitute a waiver the landlord may
retain the payment, but is otherwise admonished to refuse the payment.
B. Mobile Home Notices
1. Non-payment of rent. 5 day.
2. Breach of Agreement. 30 day. 76-14,101
3. Noncompliance affecting health and safety. 14 day. 76-14,102
4. Termination. Month to month rental agreements may be cancelled by
either party by giving the other at least 30 days notice to the other. A
landlord may not cancel a rental agreement solely for the purpose of
making the space available for another tenant. 76-1475(5)
5. Modification of rules and regulation. 76-1494 60 days. However, rules
and regulations may not be enforceable if they are enacted after the
tenant enters into a lease and the proposed rule or regulation conflicts
with the tenant's lease.
6. Rent Increases. Rent can only be changed after the term of the
agreement has expired. Notices to increase rent must be in writing and
mailed or given by "actual notice" at least sixty days prior to the date of
the increase. See §76-1489.
C. Non-URLTA Notices
1. 3 day. Unless otherwise specified in a rental agreement, a notice of
termination must be served at least three days prior to the
commencement of a forcible entry and detainer action.
2. Termination. The type of notice required to be given depends on the type
of tenancy that is held by the tenant. In addition the notice for termination
may covered by the rental agreement. Provisions in the rental agreement
requiring specified length of time and manner of delivery must be followed.
D. Public Housing.
1. Generally Public Housing units are covered by URLTA requirements.
Depending on which program the tenant occupies the premises under, the
Housing Authority may be required to give longer notices and the tenant
may be allowed a hearing.
2. Serious and Clear Danger. If a tenant has created a serious and clear
danger, they may be given a 3 day notice of termination (without right to
an administrative hearing) of the rental agreement.
VIII. The Eviction Process
A. Notice
1. If the attorney serves the notice, attorney must follow the fair debt
collection practices act requirements. Romea v. Heiburger and
Associates, 163 F2d. 111 (2nd Cir, 1998).
2. Statute of Limitations: although URLTA does not set one, the general
Statute of Limitation may require that the action for possession be
commenced within 1 year of the service of the notice
B. Petition
1. Must allege facts on which landlord seeks to recover, reasonably accurate
description of the premises and requisite compliance with the notice
provisions.
2. Separately identify other causes of action (besides restitution of premises)
such as rent and damages.
3. Petition may also notify the tenant that abandon property may be disposed
of pursuant to the Disposition of Personal Property Landlord and Tenant
Act.
C. Service of Summons
1. Personal - Residential. Serve tenant personally or by leaving with person
of suitable age and discretion.
2. Mail and Posting Neb. R.R.S. §76-1442.01 allows for mailing and posting
if server couldn't serve by "diligent efforts" but then only given judgment
for restitution of the premises.
3. Substitute service: Neb. R.R.S. §25-517.02 If tenant avoids personal or
residential service, landlord may after obtaining a court order, post
summons at the premises and mail a copy to the tenant.
4. Return of service. Affidavit is to be filed showing type of service.
D. Trial for restitution. Trial will occur no less than 10 days and no more than 14
days after the issuance of the summons.
1. Always have witness(es) prepared to testify for restitution.
2. Proving up - key issues
a. valid notice, service and non-waiver
b. default exists through no fault of landlord
c. tenant remains in possession
d. no valid tenant defenses
3. NOTE IF LB175 passes, you would probably not need witnesses at the
first trial since it is not contested at that point.
E. Praecipe for Writ & Writ of restitution. Constable/sheriff has up to 10 days to
execute, however 76-1446 requires that the premises are to be restored "on a
specified date" which apparently the landlord selects.
1. Changing of locks rather than removing property to street.
2. Personal property remaining in the property "shall" be treated as abandon
property according to 69-2301
F. Rent and damages trial
1. Motion for Default on rent portion of case.
2. Trials of contested matters.
G. Judgment
H. Costs and attorney fees
1. One purpose of URLTA is to discourage the use of self-help remedies
which may have been available under common law.
2. To this end URLTA allows judges to impose awards of triple rent damages
and attorney fees. The goal is to allow courts to use these as methods
to discourage both landlords and tenants from violating URLTA and to
encourage use of the courts rather than traditional self help remedies.
IX. Lead Paint:
A. Any property built prior to 1978 may have lead paint. The landlord must
disclose the presence of lead based paint, issue a warning to the tenant and
give tenant a copy of HUD's pamphlet.
B. Landlord does not have duty to remove lead based paint (except as may be
required by city ordinance).
C. Failure to remediate the lead based paint has lead to huge judgments for the
injured children against both the parents of the child and the landlords.
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