40-101. Homestead, defined; exempted.

A homestead not exceeding sixty thousand dollars in value shall consist of the dwelling house in which the claimant resides, its appurtenances, and the land on which the same is situated, not exceeding one hundred and sixty acres of land, to be selected by the owner, and not in any incorporated city or village, or, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village, and shall be exempt from judgment liens and from execution or forced sale, except as provided in sections 40-101 to 40-116.

Source:Laws 1879, § 1, p. 57; R.S.1913, § 3076; C.S.1922, § 2816; C.S.1929, § 40-101; R.S.1943, § 40-101; Laws 1957, c. 153, § 3, p. 498; Laws 1973, LB 15, § 1; Laws 1980, LB 940, § 3; Laws 1986, LB 999, § 2; Laws 1997, LB 372, § 4; Laws 2007, LB237, § 1.    


Annotations

40-102. Homestead; selection of property.

(1) If the claimant is married, the homestead may be selected from the separate property of the claimant or, with the consent of the claimant's spouse, from the separate property of the claimant's spouse.

(2) If the claimant is not married, the homestead may be selected from any of his or her property.

Source:Laws 1879, § 2, p. 58; R.S.1913, § 3077; C.S.1922, § 2817; C.S.1929, § 40-102; R.S.1943, § 40-102; Laws 2010, LB907, § 1;    Laws 2014, LB964, § 1.    


Annotations

40-103. Homestead; exemption; when inoperative.

The homestead is subject to execution or forced sale in satisfaction of judgments obtained (1) on debts secured by mechanics', laborers', or vendors' liens upon the premises and (2) on debts secured by mortgages or trust deeds upon the premises executed and acknowledged by both husband and wife, or an unmarried claimant.

Source:Laws 1879, § 3, p. 58; R.S.1913, § 3078; C.S.1922, § 2818; C.S.1929, § 40-103; R.S.1943, § 40-103; Laws 1997, LB 372, § 5.


Annotations

40-104. Homestead; how conveyed or encumbered; assertion of claim of invalidity of conveyance.

Except as otherwise provided in this section, the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both spouses. The interest of either or both spouses may be conveyed or encumbered by a conservator acting in accordance with the provisions of the Nebraska Probate Code and may also be conveyed or encumbered by an attorney in fact appointed by and acting on behalf of either spouse under any power of attorney which grants the power to sell and convey real property. Any claim of invalidity of a deed of conveyance of homestead property because of failure to comply with the provisions of this section must be asserted within the time provided in sections 76-288 to 76-298.

A purchase agreement or contract for sale of homestead property signed by both spouses does not require acknowledgment to be enforceable.

Source:Laws 1879, § 4, p. 58; R.S.1913, § 3079; C.S.1922, § 2819; C.S.1929, § 40-104; Laws 1935, c. 91, § 1, p. 312; C.S.Supp.,1941, § 40-104; R.S.1943, § 40-104; Laws 1947, c. 243, § 13, p. 767; Laws 2006, LB 409, § 1;    Laws 2015, LB253, § 1.    


Cross References

Annotations

40-105. Homestead; selection; procedure.

When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 40-103 is levied upon the lands or tenements of a claimant, the claimant may at any time prior to confirmation of sale apply to the district court in the county in which the homestead is situated for an order to determine whether or not such lands or tenements, or any part thereof, are exempt as a homestead and, if so, the value thereof.

Source:Laws 1879, § 5, p. 58; R.S.1913, § 3080; C.S.1922, § 2820; C.S.1929, § 40-105; R.S.1943, § 40-105; Laws 1947, c. 153, § 1, p. 420; Laws 2010, LB907, § 2;    Laws 2014, LB964, § 2.    


Annotations

40-106. Homestead; selection; application; contents.

The application must show (1) the fact that an execution has been levied upon property which is claimed as a homestead, (2) the name of the judgment creditor, (3) the facts which give rise to a homestead exemption, and (4) the value of the homestead.

Source:Laws 1879, § 6, p. 59; R.S.1913, § 3081; C.S.1922, § 2821; C.S.1929, § 40-106; R.S.1943, § 40-106; Laws 1947, c. 153, § 2, p. 420.


Annotations

40-107. Homestead; selection; application; filing; service.

The application must be filed with the clerk of the district court, and a copy thereof, with notice of the time and place of hearing, be served upon the judgment creditor or his attorney of record and the officer making the levy at least ten days before the hearing. The hearing may be had before or at the hearing on confirmation of sale.

Source:Laws 1879, § 7, p. 59; R.S.1913, § 3082; C.S.1922, § 2822; C.S.1929, § 40-107; R.S.1943, § 40-107; Laws 1947, c. 153, § 3, p. 421.


Annotations

40-108. Homestead; selection; hearing.

At the hearing the court, upon proof of the service of such application and notice, shall determine whether or not such land is subject to the homestead exemption. If it is not, the court shall dismiss the application. If it is, the court shall further determine: (1) The extent and value of the homestead; and (2) if of greater value than the homestead exemption, whether or not the land claimed as a homestead can be divided without material injury. In the event the land which is determined by the court to be subject to the homestead exemption has already been sold on execution by the sheriff, the sale shall be set aside and the judgment creditor shall be assessed the costs of the sale and of the hearing, unless such land was sold for more than the homestead exemption.

Source:Laws 1879, § 8, p. 59; R.S.1913, § 3083; C.S.1922, § 2823; C.S.1929, § 40-108; R.S.1943, § 40-108; Laws 1947, c. 153, § 4, p. 421.


Annotations

40-109. Repealed. Laws 1947, c. 153, § 7.

40-110. Homestead; when set off; selection of other lands.

If from the evidence it appears that the land upon which the execution has been levied can be divided without material injury, the court shall, by an order, set off to the claimant so much of the land, including the residence, not exceeding the quantity prescribed in section 40-101, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land, except that if the residence and the ground on which it is situated, with five acres surrounding the same, amount in value to more than the homestead exemption, other lands may be selected on which no building or residence stands as the homestead for the debtor and his or her family.

Source:Laws 1879, § 10, p. 59; R.S.1913, § 3085; C.S.1922, § 2825; Laws 1927, c. 111, § 1, p. 315; C.S.1929, § 40-110; R.S.1943, § 40-110; Laws 1947, c. 153, § 5, p. 421; Laws 1986, LB 999, § 3.


Annotations

40-111. Indivisible homestead; sale; conditions.

If from the evidence it appears that the land upon which the execution has been levied cannot be divided, the court shall, unless a sale has already been held, make an order directing the sale of the land under the execution; but at such sale no bid must be received unless it exceeds the amount of the homestead exemption. Where a sale has already been held, the proceeds of sale to an amount equaling the homestead exemption shall be set off to the judgment debtor as exempt, and the balance distributed as provided by order of the court.

Source:Laws 1879, § 11, p. 60; R.S.1913, § 3086; C.S.1922, § 2826; C.S.1929, § 40-111; R.S.1943, § 40-111; Laws 1947, c. 153, § 6, p. 422.


Annotations

40-112. Indivisible homestead; sale; proceeds; disposition.

If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution.

Source:Laws 1879, § 12, p. 60; R.S.1913, § 3087; C.S.1922, § 2827; C.S.1929, § 40-112; R.S.1943, § 40-112.


Annotations

40-113. Indivisible homestead; sale; surplus proceeds; protection.

The money paid to the claimant is entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead.

Source:Laws 1879, § 13, p. 60; R.S.1913, § 3088; C.S.1922, § 2828; C.S.1929, § 40-113; R.S.1943, § 40-113.


Annotations

40-114. Repealed. Laws 1947, c. 153, § 7.

40-115. Repealed. Laws 2014, LB 964, § 4.

40-116. Homestead; protection of surplus after execution sale.

If the homestead be conveyed by the claimant, or sold for the satisfaction of any lien mentioned in section 40-103, the proceeds of such sale, beyond the amount necessary to the satisfaction of such lien, and not exceeding the amount of the homestead exemption, shall be entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead. The sale and disposition of one homestead shall not be held to prevent the selection or purchase of another, as provided in sections 40-101 to 40-116.

Source:Laws 1879, § 16, p. 61; R.S.1913, § 3091; C.S.1922, § 2831; C.S.1929, § 40-116; R.S.1943, § 40-116.


Annotations

40-117. Repealed. Laws 1974, LB 354, § 316.

40-118. Transferred to section 61-105.