Jan E. Beran, Attorney at Law

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Landlord Tenant Issues

  1. Apportionment of Water, Sewer and Refuse to Tenant (Utilities Addendum)
    1. Statutory concerns
      1. Nebraska Law:

        2. Sec. 76-1419. Landlord to maintain fit premises.
        (1) The landlord shall:
        (a) . . . [maintain the premises] . . .
        (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
        (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.
        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.

        (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.
        (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:
        (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
        (b) The agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.

        (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.
      2. Lincoln code:
    2. "Evading" landlord's obligations
      1. Contractual
      2. Distinction between single family and multi family
    3. Characterization of utility bill as "rent"
    4. Non-payment
      1. Notice required
        1. If considered rent
        2. If characterized as not rent
      2. Complications (waiver by acceptance of rent)
    5. Owner's exposure
      1. Inability to enforce
      2. Provision made illegal
      3. Refund of payments made
      4. Class action for refund of past payments of "illegal" charges
      5. Inability to reclaim lost rent
    6. Manager's exposure (for failing to advise owner)
  2. Security Deposit Refunds and Accounting
    1. Law requires 14 day after demand
    2. Penalty for failing to report
      1. Refund deposit
      2. Pay attorney fees
      3. Forfeit right to claim damages
      4. BUT what does 76-1416(4) mean? ("This section does not preclude the landlord or tenant from recovering other damages to which he may be entitled . . .")
    3. Form required (none)
  3. 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
  4. Holdover
    1. If tenant remains in possession of premises without permission
    2. Watch waiver of notice
  5. 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)
  6. 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)
  7. LB116 Serious and Clear Danger introduced by Senator Quandahl 1/4/2001
    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 commites 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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