Jan E. Beran, Attorney at Law

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Overview of Eviction Process and Crime Free Neighborhoods

  1. Notices
    1. Opportunity to Cure
      1. Non-payment of rent - Three Day Notice
      2. Other Breach - 14/30 Day
        Note some judges prefer a second notice on the 15th day be issued. Notice of Termination, Failure to Cure
    2. Straight (no right to cure)
      1. 30 Day notice (prior to the 1st of the month) applies to MONTH to MONTH tenancies only.
      2. 14 Day notice after notice of breach (14/30 day) within last six months
  2. Holdover
    1. If tenant remains in possession of premises without permission
    2. Watch waiver of notice
  3. Eviction Process
    1. File Petition
      1. Personal and residential service (if money judgment is important)
      2. Mail and Posting Service (if money judgment is not important)
    2. Obtain Service (sheriff or constable)
      1. If no service, must reschedule trial
      2. Obtain service by Substitute Service
    3. Trial (10 to 14 days)
    4. Writ of Restitution (lock out)
      1. Sheriff and Constable prefer moveouts on Mondays
      2. Sheriff and Constable to not remain on premises during lock change
      3. Tenant's personal property remaining in premises must be treated according to Disposition of Personal Property Landlord and Tenant Act
    5. Trial on Rent and Damages Issues (depending on service)
  4. Serious and Clear Danger or Incurrable Breach Evictions
    1. Without Lease Provision or Addendum
      1. General breach peace and quiet of neighbors or of lease or rule and regulation.
      2. 14/30 Day notice
        1. Note this is curable, ie. if no further breaches occur, default is cured, and tenant may remain in the premises.
        2. Some attorneys suggest that a second breach within the 14 days is a separate breach within six months and thus a 14 day notice with no right to cure may be issued following the issuance of the 14/30 day
        3. Lease may attempt to make a default "incurable" but not tested in Lancaster Co. Courts.
      3. Eviction
    2. With Lease Provision or Addendum
      1. Breach of provision results in "voiding" of lease
      2. Three day notice to Quit
      3. Eviction (similar process but different statute)
  5. LB116 Serious and Clear Danger introduced by Senator Quandahl 1/4/2001
    Update as of April 17, 2002 LB 116 has been held in committee and will die in committee at the end of this legislative session. We need volunteers to contact their Senators and Senator Quandahl to encourage them to re-introduce a similar measure next session.
    1. Tenant who creates a serious and clear danger, breaches the rental agreement
    2. Written notice to vacate within 3 days
      1. No right to cure
      2. If holds over landlord must file eviction
      3. Tenant may contest the termination at trial (ie. is it a serious and clear danger)
    3. Serious and Clear Danger Defined
      1. Physical assualt or threat
      2. Illegal use of firearm or other weapon or threat
      3. Presence of controlled substance by tenant or one with permission on the premises
    4. Compare to Public Housing Authroities provision
      1. Three Day notice, no hearing
      2. Grounds include:
        • Engaging in any drug related or violent criminal activity
        • Activity which threatens the health, safety or peaceful enjoyment of other residents or agency employees
        • Physical assault or threat
        • Illegal use of firearm or other weapon or threat
        • Possession of a controlled substance
      3. Tenant may be evicted if any of these persons committs grounds
        • Resident or any member of resident's household
        • Any guest or other person under resident's control
        • Any person on premises with resident's consent
      4. Eviction after holdover
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