76-101. Terms, defined.

As used in sections 76-101 to 76-123 and unless a different meaning appears from the context: (a) The term property means one or more interests either legal or equitable, possessory or nonpossessory, present or future, in land, or in things other than land, including choses in action, but excluding powers of appointment, powers of sale and powers of revocation, except when specifically mentioned; (b) the term future interest is applicable equally to property interests in land and in things other than land, and is limited to all varieties of remainders, reversions, executory interests, powers of termination (otherwise known as rights of entry for condition broken), and possibilities of reverter; (c) the term conveyance means an act by which it is intended to create one or more property interests, irrespective of whether the act is effective to create such interests, and irrespective of whether the act is intended to have inter vivos or testamentary operation; (d) the term otherwise effective conveyance means that the conveyance in question satisfies all the requirements of law other than the particular matter dealt with in the section of sections 76-101 to 76-123 in which the term is used; and (e) an intent is effectively manifested when it is manifested by the evidence of intent admissible according to the applicable rules of law with respect to the admissibility of evidence.

Source:Laws 1941, c. 153, § 2, p. 595; C.S.Supp.,1941, § 76-1001; R.S.1943, § 76-101.


Annotations

76-102. Sections; applicability to corporations.

The provisions of sections 76-101 to 76-123 apply to corporations unless the context indicates a more limited applicability.

Source:Laws 1941, c. 153, § 2, p. 595; C.S.Supp.,1941, § 76-1002; R.S.1943, § 76-102.


76-103. Sections; property to which applicable.

Any possessory or future interest, power of appointment or of revocation, which can be created in this state with regard to land, can also be created with regard to anything other than land, including choses in action.

Source:Laws 1941, c. 153, § 3, p. 595; C.S.Supp.,1941, § 76-1003; R.S.1943, § 76-103.


76-104. Interest transferred by effective conveyance; fee simple; special words unnecessary.

An otherwise effective conveyance of property transfers the entire interest which the conveyor has and has the power to convey, unless an intent to transfer a less interest is effectively manifested. No words of inheritance or other special words are necessary to transfer a fee simple.

Source:Laws 1941, c. 153, § 4, p. 595; C.S.Supp.,1941, § 76-1004; R.S.1943, § 76-104.


Annotations

76-105. Powers of appointment, sale, and revocation; effect.

An otherwise effective exercise of power of appointment, a power of sale or a power of revocation, whether inter vivos or by a testamentary disposition, transfers or revokes the entire interest which the holder thereof has the power to transfer or to revoke unless an intent to transfer or to revoke a less interest is effectively manifested.

Source:Laws 1941, c. 153, § 5, p. 595; C.S.Supp.,1941, § 76-1005; R.S.1943, § 76-105.


76-106. Reservation of property; effect.

An otherwise effective reservation of property by the conveyor reserves the interest the conveyor had prior to the conveyance unless an intent to reserve a different interest is effectively manifested.

Source:Laws 1941, c. 153, § 6, p. 595; C.S.Supp.,1941, § 76-1006; R.S.1943, § 76-106.


Annotations

76-107. Future interest; conveyance authorized; exceptions; limitations.

(1) The conveyance of an existing future interest, whether legal or equitable, is not ineffective on the sole ground that the interest so conveyed is future or contingent, except that possibilities of reverter or rights of reentry for breach of condition subsequent shall not be alienable or devisable.

(2) Neither possibilities of reverter nor rights of reentry for breach of condition subsequent relating to any property, whether created on, before, or after July 9, 1988, when the condition has not been broken, shall be valid for a longer period than thirty years from the date of the creation of the condition or possibility of reverter or right of reentry. If such possibility of reverter or right of reentry is created to endure for a longer period than thirty years, it shall be valid for thirty years. This subsection shall not apply to personal property which has been conveyed to a library or museum for the purpose of public display.

(3) Any cause of action arising from any possibility of reverter or right of reentry for breach of condition subsequent which existed prior to July 9, 1988, shall be commenced within a period of one year following July 9, 1988.

Source:Laws 1941, c. 153, § 7, p. 596; C.S.Supp.,1941, § 76-1007; R.S.1943, § 76-107; Laws 1961, c. 367, § 1, p. 1139; Laws 1988, LB 657, § 1.


Annotations

76-108. Future interest; subject to claims of creditors.

The subjection to the claims of creditors of a future interest, whether legal or equitable, is not prevented or avoided on the sole ground that such interest is future or contingent.

Source:Laws 1941, c. 153, § 8, p. 596; C.S.Supp.,1941, § 76-1008; R.S.1943, § 76-108.


76-109. Property not in possession of conveyor; conveyance effective.

Any act which would be effective as a conveyance inter vivos or as a mortgage or as a testamentary disposition of property when the land or thing other than land is in the possession of the conveyor, is effective as a conveyance of the conveyor's interest therein, when the land or thing other than land is out of the conveyor's possession whether adversely held or not.

Source:Laws 1941, c. 153, § 9, p. 596; C.S.Supp.,1941, § 76-1009; R.S.1943, § 76-109.


76-110. Fee simple conditional and fee tail; abolished; effect of use.

The creation of fees simple conditional as they existed under the law of England prior to the statute de donis is not permitted. The creation of fees tail is not permitted. The use in an otherwise effective conveyance of property, of language appropriate to create such a fee simple conditional or a fee tail, creates a fee simple in the person who would have taken a fee simple conditional or a fee tail. Any future interest limited upon such an interest is a limitation upon the fee simple and its validity is determined accordingly. Nothing herein contained shall affect the operation of sections 76-111 to 76-113.

Source:Laws 1941, c. 153, § 10, p. 596; C.S.Supp.,1941, § 76-1010; R.S.1943, § 76-110.


Annotations

76-111. Definite failure of issue, defined.

Whenever property is limited upon the death of any person without heirs or heirs of the body or issue general or special, or descendants or offspring or children or any such relative described by other terms, such limitation, unless a different intent is effectively manifested, is a limitation to take effect only when such person dies not having such relative living at the time of his death or in gestation and born alive thereafter, and is not a limitation to take effect upon the indefinite failure of such relatives; nor, unless a different intent is effectively manifested, does it mean that death without such relative, in order to be material, must occur in the lifetime of the creator of the interest.

Source:Laws 1941, c. 153, § 11, p. 596; C.S.Supp.,1941, § 76-1011; R.S.1943, § 76-111.


76-112. Life interest with limitation by remainder to heirs; rule in Shelley's Case abolished.

Whenever any person, by conveyance, takes a life interest and in the same conveyance an interest is limited by way of remainder, either immediately or mediately, to his heirs, or the heirs of his body, or his issue, or next of kin, or some of such heirs, heirs of the body, issue, or next of kin, the word heirs, heirs of the body, or next of kin, or other words of like import used in the conveyance, in the limitation therein by way of remainder, are not words of limitation carrying to such person an estate of inheritance or absolute estate in the property, but are words of purchase creating a remainder in the designated heirs, heirs of the body, issue, or next of kin.

Source:Laws 1941, c. 153, § 12, p. 596; C.S.Supp.,1941, § 76-1012; R.S.1943, § 76-112.


Annotations

76-113. Conveyance to a person and the person's children; rule in Wild's Case abolished.

When an otherwise effective conveyance of property is made in favor of a person and his children, or in favor of a person and his issue, or by other words of similar import designating the person and the descendants of the person, whether the conveyance is immediate or postponed, the conveyance creates a life interest in the person designated and a remainder in his designated descendants, unless an intent to create other interests is effectively manifested.

Source:Laws 1941, c. 153, § 13, p. 597; C.S.Supp.,1941, § 76-1013; R.S.1943, § 76-113.


Annotations

76-114. Testamentary conveyance to the heirs or next of kin of the conveyor; doctrine of worthier title abolished.

When any property is limited, mediately or immediately, in an otherwise effective testamentary conveyance, in form or in effect, to the heirs or next of kin of the conveyor, or to a person or persons who on the death of the conveyor are some or all of his heirs or next of kin, such conveyees acquire the property by purchase and not by descent.

Source:Laws 1941, c. 153, § 14, p. 597; C.S.Supp.,1941, § 76-1014; R.S.1943, § 76-114.


76-115. Inter vivos conveyance to the heirs or next of kin of the conveyor; effect.

When any property is limited, in an otherwise effective conveyance inter vivos, in form or in effect, to the heirs or next of kin of the conveyor, which conveyance creates one or more prior interests in favor of a person or persons in existence, such conveyance operates in favor of such heirs or next of kin by purchase and not by descent.

Source:Laws 1941, c. 153, § 15, p. 597; C.S.Supp.,1941, § 76-1015; R.S.1943, § 76-115.


76-116. Future interests; indestructibility of contingent interests.

No future interest, whether legal or equitable, shall be destroyed by the mere termination, in any manner, of any or all preceding interests before the happening of the contingency to which the future interest is subject.

Source:Laws 1941, c. 153, § 16, p. 597; C.S.Supp.,1941, § 76-1016; R.S.1943, § 76-116.


76-117. Cross limitations; creation by implication.

When an otherwise effective conveyance of property is made to two or more persons as tenants in common for life or for a term of years which is terminable at their deaths, with an express remainder, whether effective or not, (a) to the survivor of such persons, or (b) upon the death of all the life tenants to another person or persons, such conveyance, unless a different intent is effectively manifested, creates cross limitations among the several tenants in common, so that the share of the one first dying passes to his cotenants to be held by them in the same manner as their original shares, and the shares of the second and others dying, in succession, are similarly treated until the time when the property is limited to pass as a whole to the remainderman.

Source:Laws 1941, c. 153, § 17, p. 597; C.S.Supp.,1941, § 76-1017; R.S.1943, § 76-117.


Annotations

76-118. Conveyances; identity of grantor and grantee; effect.

(1) Any person or persons owning property which he, she, or they have power to convey, may effectively convey such property by a conveyance naming himself, herself, or themselves and another person or persons, as grantees, and the conveyance has the same effect as to whether it creates a joint tenancy, or tenancy in common, or tenancy in partnership, as if it were a conveyance from a stranger who owned the property to the persons named as grantees in the conveyance. (2) Any two or more persons owning property which they have power to convey, may effectively convey such property by a conveyance naming one, or more than one, or all such persons, as grantees, and the conveyance has the same effect, as to whether it creates a separate ownership, or a joint tenancy, or tenancy in common, or tenancy in partnership, as if it were a conveyance from a stranger who owned the property, to the persons named as grantees in the conveyance. (3) Any person mentioned in this section may be a married person, and any persons so mentioned may be persons married to each other. (4) The conveyance of all of the interest of one joint tenant to himself or herself as grantee, in which the intention to effect a severance of the joint tenancy expressly appears in the instrument, severs the joint tenancy.

Source:Laws 1941, c. 153, § 18, p. 598; C.S.Supp.,1941, § 76-1018; R.S.1943, § 76-118; Laws 1980, LB 694, § 11.


Annotations

76-119. Conveyances between husband and wife; effect.

A married person has the power to convey effectively property directly to his or her spouse in the same manner and to the same extent as if he or she were unmarried. Property so conveyed shall be subject to the rights of the grantor as spouse of the grantee in the same manner and to the same extent as property otherwise acquired by the grantee.

Source:Laws 1941, c. 153, § 19, p. 598; C.S.Supp.,1941, § 76-1019; R.S.1943, § 76-119.


76-120. Waste; damages recoverable.

When conduct claimed to constitute waste is made the basis of a claim for damages, the claimant is limited to a recovery of compensatory damages and is not entitled to multiple damages or to declare a forfeiture of the place wasted or of the interest of the defendant in the place wasted, except in accordance with covenants, agreements or conditions binding such defendants.

Source:Laws 1941, c. 153, § 20, p. 598; C.S.Supp.,1941, § 76-1020; R.S.1943, § 76-120.


76-121. Sections; interpretation.

Sections 76-101 to 76-123 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source:Laws 1941, c. 153, § 21, p. 598; C.S.Supp.,1941, § 76-1021; R.S.1943, § 76-121.


Annotations

76-122. Sections; conveyances not affected.

Sections 76-101 to 76-123 shall not apply to acts which occurred or to conveyances which became effective before August 24, 1941, except as provided in subsections (2) and (3) of section 76-107.

Source:Laws 1941, c. 153, § 22, p. 599; C.S.Supp.,1941, § 76-1022; R.S.1943, § 76-122; Laws 1988, LB 657, § 2.


Annotations

76-123. Act, how cited.

Sections 76-101 to 76-123 may be referred to as the Uniform Property Act.

Source:Laws 1941, c. 153, § 23, p. 599; C.S.Supp.,1941, § 76-1023; R.S.1943, § 76-123.


76-201. Real estate, defined.

For purposes of sections 76-201 to 76-281 and 76-2,126, the term real estate shall be construed as coextensive in meaning with lands, tenements, and hereditaments, and as embracing all chattels real, except leases for a term not exceeding one year.

Source:R.S.1866, c. 43, § 49, p. 290; R.S.1913, § 6187; C.S.1922, § 5586; C.S.1929, § 76-101; R.S.1943, § 76-201; Laws 2012, LB536, § 26.    


Annotations

76-202. Purchaser, defined.

The term purchaser, as used in sections 76-201 to 76-281 and 76-2,126, shall be construed to embrace every person to whom any real estate or interest therein shall be conveyed for valuable consideration and also any assignee of mortgage or lease or other conditional estate.

Source:R.S.1866, c. 43, § 50, p. 291; R.S.1913, § 6188; C.S.1922, § 5587; C.S.1929, § 76-102; R.S.1943, § 76-202; Laws 2012, LB536, § 27.    


Annotations

76-203. Deed, defined.

The term deed, as used in sections 76-201 to 76-281 and 76-2,126, shall be construed to embrace every instrument in writing by which any real estate or interest therein is created, aliened, mortgaged, or assigned or by which the title to any real estate may be affected in law or equity, except last wills and leases for one year or for a less time.

Source:R.S.1866, c. 43, § 51, p. 291; R.S.1913, § 6189; C.S.1922, § 5588; C.S.1929, § 76-103; R.S.1943, § 76-203; Laws 2012, LB536, § 28.    


Annotations

76-204. Deed; instrument not included.

Section 76-203 shall not be construed to extend to a letter of attorney or other instrument containing a power to convey lands as agent or attorney for the owner of such lands; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged in the manner prescribed by statute, may be recorded in the office of the register of deeds of any county in which the real estate to which such power or contract relates may be situated. Such an instrument, when so proved or acknowledged, and the record thereof, when recorded, or the transcript of such record, may be read in evidence, in the same manner and with the like effect as a conveyance recorded in such county.

Source:R.S.1866, c. 43, § 52, p. 291; Laws 1887, c. 30, § 26, p. 372; R.S.1913, § 6190; C.S.1922, § 5589; C.S.1929, § 76-104; R.S.1943, § 76-204; Laws 1973, LB 227, § 1.


Annotations

76-205. Instruments; construction; intent of parties; duty of courts.

In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law.

Source:R.S.1866, c. 43, § 59, p. 292; R.S.1913, § 6195; C.S.1922, § 5594; C.S.1929, § 76-109; R.S.1943, § 76-205.


Annotations

76-206. Covenant for title; effective words.

Unless such intention is expressly negatived by the language in the instrument, a covenant in a conveyance of real property that the grantor is seized, or lawfully seized, or words to like effect, shall be interpreted as a covenant that the grantor has good title to the very estate in quantity and quality which he purports to convey.

Source:Laws 1923, c. 111, § 1, p. 269; C.S.1929, § 76-110; R.S.1943, § 76-206.


Annotations

76-207. Covenants; breach; constructive eviction; acts constituting.

Covenants of quiet enjoyment and covenants of warranty in conveyances of real property may be breached by an eviction, actual or constructive, by reason of the hostile assertion of a paramount title holder. A constructive eviction occurs in the following situations: (1) Where the covenantee is kept out of possession by the paramount title holder; (2) where the covenantee surrenders possession to the paramount title holder; and (3) where the covenantee in order to retain possession is forced to and buys off the paramount title holder.

Source:Laws 1923, c. 111, § 2, p. 269; C.S.1929, § 76-111; R.S.1943, § 76-207.


Annotations

76-208. Covenants for title; who may enforce.

Unless such intention is expressly negatived by the language in the instrument, all covenants for title in conveyances of real property, including covenants of seisin, right to convey, freedom from encumbrances, quiet enjoyment, and warranty, when made with the grantee, run with the land and are enforceable by any assignee thereof, immediate or remote, by a suit in his own name; Provided, however, that the ultimate damage occasioned by a breach of the covenant on which suit is brought has not occurred prior to the assignment to such assignee. It shall not be a defense to the covenantor when sued by an assignee that the covenantor was a stranger to title to the whole or a part of the land the covenantor purported to convey.

Source:Laws 1923, c. 111, § 3, p. 269; C.S.1929, § 76-112; R.S.1943, § 76-208.


Annotations

76-209. Deed; after-acquired interest; effect.

When a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor to the extent of that which the deed purports to convey shall accrue to the benefit of the grantee; Provided, however, such after-acquired interest shall not inure to the benefit of the original grantee or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty, and the original grantor in any case shall not be estopped from acquiring said premises at judicial or tax sale, upon execution against the grantee or his assigns, or for taxes becoming due after date of his conveyance.

Source:R.S.1866, c. 43, § 56, p. 291; Laws 1875, § 1, p. 91; R.S.1913, § 6193; C.S.1922, § 5592; C.S.1929, § 76-107; R.S.1943, § 76-209.


Annotations

76-210. Estates in future; recognized.

Estates may be created to commence at a future day.

Source:R.S.1866, c. 43, § 57, p. 292; R.S.1913, § 6194; C.S.1922, § 5593; C.S.1929, § 76-108; R.S.1943, § 76-210.


76-211. Deeds; execution; record.

Deeds of real estate, or any interest therein, in this state, except leases for one year or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, and be acknowledged or proved and recorded as directed in sections 76-216 to 76-237.

Source:R.S.1866, c. 43, § 1, p. 280; Laws 1887, c. 61, § 1, p. 561; R.S.1913, § 6196; C.S.1922, § 5595; C.S.1929, § 76-201; Laws 1939, c. 96, § 1, p. 416; C.S.Supp.,1941, § 76-201; R.S.1943, § 76-211.


Annotations

76-212. Private seals; use abolished.

The use of private seals upon all deeds, mortgages, leases, bonds, and other instruments and contracts in writing, is abolished, and the addition of a private seal to any such instrument or contract in writing shall not affect its equity or legality in any respect.

Source:R.S.1866, c. 49, § 1, p. 376; R.S.1913, § 6251; C.S.1922, § 5650; C.S.1929, § 76-256; R.S.1943, § 76-212.


Annotations

76-213. Deeds and other instruments; executed without seal; validated.

All deeds, mortgages, or other instruments in writing, for the conveyance or encumbrance of real estate, or any interest therein, which have been made and executed without the use of a private seal are declared to be legal and valid in all courts of law and equity in this state and elsewhere.

Source:R.S.1866, c. 49, § 2, p. 376; R.S.1913, § 6252; C.S.1922, § 5651; C.S.1929, § 76-257; R.S.1943, § 76-213.


76-214. Deed, memorandum of contract, or land contract; recorded; death certificate filed; statement required; access.

(1) Except as provided in subsection (4) of this section, every grantee who has a deed to real estate recorded and every purchaser of real estate who has a memorandum of contract or land contract recorded shall, at the time such deed, memorandum of contract, or land contract is presented for recording, file with the register of deeds a completed statement as prescribed by the Tax Commissioner. For all deeds and all memoranda of contract and land contracts recorded on and after January 1, 2001, the statement shall not require the social security number of the grantee or purchaser or the federal employer identification number of the grantee or purchaser. This statement may require the recitation of any information contained in the deed, memorandum of contract, or land contract, the total consideration paid, the amount of the total consideration attributable to factors other than the purchase of the real estate itself, and other factors which may influence the transaction. If a death certificate is recorded as provided in subsection (2) of this section, this statement may require a date of death, the name of the decedent, and whether the title is affected as a result of a transfer on death deed, a joint tenancy deed, or the expiration of a life estate or by any other means. This statement shall be signed and filed by the grantee, the purchaser, or his or her authorized agent. The register of deeds shall forward the statement to the county assessor. If the grantee or purchaser fails to furnish the prescribed statement, the register of deeds shall not record the deed, memorandum of contract, or land contract. The register of deeds shall indicate on the statement the book and page or computer system reference where the deed, memorandum of contract, or land contract is recorded and shall immediately forward the statement to the county assessor. The county assessor shall process the statement according to the instructions of the Property Tax Administrator and shall, pursuant to the rules and regulations of the Tax Commissioner, forward the statement to the Tax Commissioner.

(2)(a) The statement described in subsection (1) of this section shall be filed at the time that a certified or authenticated copy of the grantor's death certificate is filed if such death certificate is required to be filed under section 76-2,126 and the conveyance of real estate was pursuant to a transfer on death deed.

(b) The statement described in subsection (1) of this section shall not be required to be filed at the time that a transfer on death deed is filed or at the time that an instrument of revocation of a transfer on death deed as described in subdivision (a)(1)(B) of section 76-3413 is filed.

(3) Any person shall have access to the statements at the office of the Tax Commissioner, county assessor, or register of deeds if the statements are available and have not been disposed of pursuant to the records retention and disposition schedule as approved by the State Records Administrator.

(4) The statement described in subsection (1) of this section shall not be required if the document being recorded is an easement or an oil, gas, or mineral lease, or any subsequent assignment of an easement or such lease, except that such statement shall be required for conservation easements and preservation easements as such terms are defined in section 76-2,111.

Source:Laws 1917, c. 224, § 1, p. 549; C.S.1922, § 5662; C.S.1929, § 76-268; R.S.1943, § 76-214; Laws 1965, c. 456, § 1, p. 1450; Laws 1965, c. 457, § 1, p. 1451; Laws 1981, LB 28, § 1; Laws 1981, LB 179, § 1; Laws 1984, LB 679, § 13; Laws 1985, LB 273, § 37; Laws 1986, LB 1027, § 200; Laws 1994, LB 902, § 13; Laws 1994, LB 1275, § 6; Laws 1995, LB 490, § 26; Laws 1995, LB 527, § 1; Laws 2000, LB 968, § 21;    Laws 2007, LB334, § 12;    Laws 2008, LB965, § 1;    Laws 2009, LB348, § 1;    Laws 2012, LB536, § 29;    Laws 2014, LB780, § 1;    Laws 2016, LB725, § 1;    Laws 2017, LB535, § 2.    
Effective Date: August 24, 2017


Cross References

Annotations

76-215. Statement; failure to furnish; penalty.

Any person who fails to obey the provisions of subsection (1) of section 76-214 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars nor exceeding five hundred dollars.

Source:Laws 1917, c. 224, § 2, p. 550; C.S.1922, § 5663; C.S.1929, § 76-269; R.S.1943, § 76-215; Laws 1965, c. 456, § 2, p. 1450; Laws 1965, c. 457, § 2, p. 1452; Laws 1994, LB 1275, § 7; Laws 2012, LB536, § 30.    


76-216. Deeds; acknowledgment required.

The grantor must acknowledge the instrument with an acknowledgment as defined in section 64-205.

Source:R.S.1866, c. 43, § 2, p. 280; R.S.1913, § 6197; C.S.1922, § 5596; C.S.1929, § 76-202; R.S.1943, § 76-216; Laws 1978, LB 668, § 1.


Annotations

76-217. Acknowledgment; before whom taken in this state.

The acknowledgment must be made or proved, if in this state, before a judge or clerk of any court, United States Magistrate or notary public therein; but no officer can take any such acknowledgment or proof out of his territorial jurisdiction.

Source:R.S.1866, c. 43, § 3, p. 280; R.S.1913, § 6198; C.S.1922, § 5597; C.S.1929, § 76-203; R.S.1943, § 76-217; Laws 1947, c. 244, § 1, p. 768; Laws 1972, LB 1032, § 268.


Cross References

Annotations

76-217.01. Acknowledgment; defective seal; validity.

No deed, mortgage, affidavit, power of attorney or other instrument in writing shall be invalidated because of any defects in the wording of the seal of the notary public attached thereto.

Source:Laws 1945, c. 145, § 12, p. 494.


76-217.02. Transferred to section 64-212.

76-217.03. Transferred to section 64-213.

76-217.04. Transferred to section 64-214.

76-217.05. Transferred to section 64-215.

76-218. Acknowledgment and recording of instruments; violations; penalty.

Every officer within this state authorized to take the acknowledgment or proof of any conveyance, and every county clerk, who shall be guilty of knowingly stating an untruth, or guilty of any malfeasance or fraudulent practice in the execution of the duties prescribed for them by law, in relation to the taking or the certifying of the proof or acknowledgment, or the recording or certifying of any record of any such conveyance, mortgage or instrument in writing, or in relation to the canceling of any mortgage, shall upon conviction be adjudged guilty of a misdemeanor, and be subject to punishment by fine not exceeding five hundred dollars, and imprisonment not exceeding one year, and shall also be liable in damages to the party injured.

Source:R.S.1866, c. 43, § 46, p. 290; R.S.1913, § 6250; C.S.1922, § 5649; C.S.1929, § 76-255; R.S.1943, § 76-218.


Annotations

76-219. Acknowledgment; before whom taken in any other state or territory.

If the instrument is executed and acknowledged or proved in any other state, territory or district of the United States, it must be executed and acknowledged or proved either according to the laws of such state, territory or district or in accordance with the law of this state, and if acknowledged out of this state it must be before some court of record or clerk or officer holding the seal thereof, or before some commissioner to take the acknowledgment of deeds, appointed by the Governor of this state, or before some notary public.

Source:R.S.1866, c. 43, § 4, p. 280; Laws 1887, c. 61, § 2, p. 562; Laws 1909, c. 110, § 1, p. 433; R.S.1913, § 6199; C.S.1922, § 5598; C.S.1929, § 76-204; R.S.1943, § 76-219.


Annotations

76-220. Repealed. Laws 1969, c. 614, § 1.

76-221. Repealed. Laws 1969, c. 614, § 1.

76-222. Repealed. Laws 1969, c. 614, § 1.

76-223. Repealed. Laws 1969, c. 614, § 1.

76-224. Repealed. Laws 1969, c. 614, § 1.

76-225. Repealed. Laws 1969, c. 614, § 1.

76-226. Deeds; execution in foreign country; laws governing; acknowledgment.

If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commissioner, commercial agent, or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same, under his hand, and if taken before a notary public, his seal of office shall be affixed to such certificate.

Source:R.S.1866, c. 43, § 6, p. 281; R.S.1913, § 6202; C.S.1922, § 5601; C.S.1929, § 76-207; R.S.1943, § 76-226.


Annotations

76-227. Acknowledgment before army officers; validity.

The acknowledgment of legal instruments, the attestation of documents, the administration of oaths and other notarial acts, heretofore or hereafter taken before any duly commissioned officer of the army, navy, marine corps, coast guard, or any other component part of the armed forces of the United States are hereby declared legal, valid and binding, and such instrument and documents shall be admissible in evidence and eligible to record in this state under the same circumstances, and with the same force and effect as if such acknowledgment, attestation, oath, affidavit, or other notarial act had been made or taken before a notary public within this state. If the signature, rank and branch of service of any such officer appear upon such instrument or document, no further proof of the authority of such officer to so act shall be required.

Source:Laws 1919, c. 169, § 1, p. 381; C.S.1922, § 5664; C.S.1929, § 76-270; Laws 1943, c. 170, § 1, p. 593; R.S.1943, § 76-227.


76-228. Proof in lieu of acknowledgment; when authorized.

If the grantor dies before acknowledgment, or if for any cause his attendance cannot be procured in order to make the same, or, having appeared, he refused to acknowledge it, proof of the execution and delivery of the deed may be made by any competent subscribing witness thereto before any officer authorized to take the acknowledgment. The witness must state, upon oath, his own place of residence, that he set his name to the deed as a witness, that he knew the grantor in such deed, and saw him sign or heard him acknowledge he had signed the same. Such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such deed.

Source:R.S.1866, c. 43, § 7, p. 281; R.S.1913, § 6203; C.S.1922, § 5602; C.S.1929, § 76-208; R.S.1943, § 76-228.


Annotations

76-229. Proof in lieu of acknowledgment; power of officer to subpoena witnesses.

The officer has power to issue the necessary subpoenas for the subscribing witnesses, residing in the same county, to appear before him for the purpose stated in section 76-228.

Source:R.S.1866, c. 43, § 8, p. 281; R.S.1913, § 6204; C.S.1922, § 5603; C.S.1929, § 76-209; R.S.1943, § 76-229.


76-230. Proof in lieu of acknowledgment; witness; disobedience to subpoena; penalty.

Every person served with a subpoena and tendered the fees of a witness who, without reasonable cause, refuses or neglects to appear, or appearing, refuses to answer upon oath touching the matters referred to in section 76-228, shall forfeit to the party injured one hundred dollars and may also be committed to prison by the officer who issued such subpoena, there to remain without bail until he or she shall submit to answer upon oath as aforesaid.

Source:R.S.1866, c. 43, § 9, p. 281; R.S.1913, § 6205; C.S.1922, § 5604; C.S.1929, § 76-210; R.S.1943, § 76-230; Laws 1991, LB 1, § 6.


76-231. Proof in lieu of acknowledgment; by handwriting; when authorized.

If all the subscribing witnesses shall be dead, or out of the state, such death or absence is first to be proved, and then the execution of the deed may be proved before such officer by proving the handwriting of the grantor and of any subscribing witness to such deed.

Source:R.S.1866, c. 43, § 10, p. 282; R.S.1913, § 6206; C.S.1922, § 5605; C.S.1929, § 76-211; R.S.1943, § 76-231.


76-232. Proof in lieu of acknowledgment; filing.

Any person interested in a deed that is not acknowledged, may, at any time before or during the proceedings before such officer, file, in the office of the register of deeds of the county where the lands lie, a copy of the deed, compared with the original by the register of deeds, which shall, for the space of thirty days thereafter, have the same effect as the recording of the deed, if such deed shall within that time be duly proved and recorded.

Source:R.S.1866, c. 43, § 11, p. 282; Laws 1887, c. 30, § 14, p. 368; R.S.1913, § 6207; C.S.1922, § 5606; C.S.1929, § 76-212; R.S.1943, § 76-232.


76-233. Proof in lieu of acknowledgment; certificate of officer.

Every officer, who shall take the acknowledgment or proof of any deed, shall endorse a certificate thereof signed by himself on the deed, and in such certificate shall truly and specifically set forth the matters hereinbefore required to be done, known or proved, on such acknowledgment or proof, together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given.

Source:R.S.1866, c. 43, § 12, p. 282; R.S.1913, § 6208; C.S.1922, § 5607; C.S.1929, § 76-213; R.S.1943, § 76-233.


Annotations

76-234. Acknowledgment; duty of officer.

No acknowledgment of any conveyance shall be taken by any officer, unless the officer taking it shall know or have satisfactory evidence that the person making such acknowledgment is the person described in and who executed such conveyance.

Source:R.S.1866, c. 43, § 43, p. 289; R.S.1913, § 6209; C.S.1922, § 5608; C.S.1929, § 76-214; R.S.1943, § 76-234.


76-235. Deed; receipt in evidence; recording; proof.

Every deed acknowledged or proved, and certified by any of the officers named in sections 76-217, 76-219, 76-220, 76-226 and 76-227, and authorized to take acknowledgments, including the certificate specified in section 76-242, whenever such certificate is required by law, may be read in evidence without further proof, and shall be entitled to be recorded. The record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original deed, whenever by the party's oath or otherwise the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control. Neither the certificate of the acknowledgment or the proof of any deed, nor the record or transcript of the record of such deed, shall be conclusive, but may be rebutted, and the force and effect thereof may be contested by any party affected thereby. If the party contesting the proof of a deed shall make it appear that such proof was taken upon the oath of an interested or incompetent witness, neither such deed nor the record thereof shall be received in evidence until established by other competent proof.

Source:R.S.1866, c. 43, § 13, p. 282; R.S.1913, § 6210; C.S.1922, § 5609; C.S.1929, § 76-215; R.S.1943, § 76-235.


Annotations

76-236. Acknowledgment or certificate of genuineness; duty to record; failure; effect.

The certificate of the proof or acknowledgment of every deed, and the certificate of the genuineness of the signature of any officer, in the cases where such last-mentioned certificate is required, shall be recorded together with the deed so proved or acknowledged; and unless the certificates be so recorded, neither the record of such deed nor the transcript thereof shall be read or received in evidence.

Source:R.S.1866, c. 43, § 14, p. 283; R.S.1913, § 6211; C.S.1922, § 5610; C.S.1929, § 76-216; R.S.1943, § 76-236.


Cross References

Annotations

76-237. Deeds; how recorded; when considered recorded.

Every deed, entitled by law to be recorded, shall be recorded in the order and as of the time when the same shall be delivered to the register of deeds for that purpose, and shall be considered recorded from the time of such delivery.

Source:R.S.1866, c. 43, § 15, p. 283; Laws 1887, c. 30, § 15, p. 368; R.S.1913, § 6212; C.S.1922, § 5611; C.S.1929, § 76-217; R.S.1943, § 76-237.


Cross References

Annotations

76-238. Deeds and other instruments; recording; when effective as notice; possession of real estate; not effective as notice; when.

(1) Except as otherwise provided in sections 76-3413 to 76-3415, all deeds, mortgages, and other instruments of writing which are required to be or which under the laws of this state may be recorded, shall take effect and be in force from and after the time of delivering such instruments to the register of deeds for recording, and not before, as to all creditors and subsequent purchasers in good faith without notice. All such instruments are void as to all creditors and subsequent purchasers without notice whose deeds, mortgages, or other instruments are recorded prior to such instruments. However, such instruments are valid between the parties to the instrument.

(2) For purposes of this section, possession of agricultural real estate or residential real estate by a party related to the owner of record of the real estate within the third degree of consanguinity or affinity shall not serve as notice to a creditor or subsequent purchaser in any case in which such party is claiming rights in such real estate pursuant to a lease (a) entered into on or after July 16, 2004; (b) purporting to extend beyond a term of one year; and (c) which has not satisfied the requirements of section 76-211, unless the creditor or subsequent purchaser, in advance of recording a deed, mortgage, or other instrument, has received a written copy of such lease.

(3) For purposes of this section:

(a) Agricultural products includes grain and feed crops; forages and sod crops; and animal production, including breeding, feeding, or grazing of cattle, horses, swine, sheep, goats, bees, or poultry;

(b) Agricultural real estate means land which is primarily used for the production of agricultural products, including waste land lying in or adjacent to and in common ownership with land used for the production of agricultural products;

(c) Related within the third degree of consanguinity or affinity includes parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, brothers, sisters, uncles, aunts, nephews, nieces, and spouses of the same and any partnership, limited liability company, or corporation in which all of the partners, members, or shareholders are related within the third degree of consanguinity or affinity; and

(d) Residential real estate means real estate containing not more than four units designed for use for residential purposes. A condominium unit that is otherwise residential real estate remains so even though the condominium development contains more than four dwelling units or units for nonresidential purposes.

Source:R.S.1866, c. 43, § 16, p. 283; Laws 1887, c. 30, § 16, p. 369; R.S.1913, § 6213; C.S.1922, § 5612; C.S.1929, § 76-218; Laws 1941, c. 154, § 1, p. 599; C.S.Supp.,1941, § 76-218; R.S.1943, § 76-238; Laws 2004, LB 155, § 6;    Laws 2012, LB536, § 32.    


Annotations

76-238.01. Mortgages; interest in real estate included; debts that may be secured; future advances; optimal future advance; notice; filing; limitation.

(1) Any interest in real property capable of being transferred may be mortgaged to secure (a) existing debts or obligations, (b) debts or obligations created simultaneously with the execution of the mortgage, (c) future advances necessary to protect the security, even though such future advances cause the total indebtedness to exceed the maximum amount stated in the mortgage, or (d) any future advances to be made at the option of the parties in any amount unless, except as otherwise provided under subsection (2) or (3) of this section, a maximum amount of total indebtedness to be secured is stated in the mortgage.

(2) Future advances necessary to protect the security shall include, but not be limited to, advances for payment of real property taxes, special assessments, prior liens, hazard insurance premiums, maintenance charges imposed under a condominium declaration or other covenant, and costs of repair, maintenance, or improvements. Future advances necessary to protect the security are secured by the mortgage and have the priority specified in subsection (3) of this section.

(3)(a) Except as provided in subdivision (b) of this subsection, all items identified in subsection (1) of this section are equally secured by the mortgage from the time of filing the mortgage as provided by law and have the same priority as the mortgage over the rights of all other persons who acquire any rights in or liens upon the mortgaged real property subsequent to the time the mortgage was filed.

(b)(i) The mortgagor or his or her successor in title may limit the amount of optional future advances secured by the mortgage under subdivision (1)(d) of this section by filing a notice for record in the office of the register of deeds of each county in which the mortgaged real property or some part thereof is situated. A copy of such notice shall be sent by certified mail to the mortgagee at the address of the mortgagee set forth in the mortgage or, if the mortgage has been assigned, to the address of the most recent assignee reflected in a recorded assignment of the mortgage. The amount of such secured optional future advances shall be limited to not less than the amount actually advanced at the time of receipt of such notice by the mortgagee.

(ii) If any optional future advance is made by the mortgagee to the mortgagor or his or her successor in title after receiving written notice of the filing for record of any trust deed, mortgage, lien, or claim against such mortgaged real property, then the amount of such optional future advance shall be junior to such trust deed, mortgage, lien, or claim. The notice under this subdivision shall be sent by certified mail to the mortgagee at the address of the mortgagee set forth in the mortgage or, if the mortgage has been assigned, to the address of the most recent assignee reflected in a recorded assignment of the mortgage.

(iii) Subdivisions (b)(i) and (ii) of this subsection shall not limit or determine the priority of optional future advances as against construction liens governed by section 52-139.

(4) The reduction to zero or elimination of the debt evidenced by the instruments authorized in this section shall not invalidate the operation of this section as to any future advances unless a notice or release to the contrary is filed for record as provided by law.

Source:Laws 1961, c. 368, § 1, p. 1140; Laws 1974, LB 913, § 1; Laws 1987, LB 136, § 1; Laws 2014, LB788, § 10.    


Annotations

76-239. Deed of trust, mortgage, or real estate sale contract; record; effect as notice; when expires; extension; exceptions.

(1) After the expiration of ten years from the date of maturity of any debt or other obligation secured by a deed of trust, mortgage, or real estate sale contract as stated in or ascertainable from the record of such deed of trust, mortgage, or contract and, in cases where the date of such maturity cannot be ascertained from such record, after the expiration of thirty years from the date of such deed of trust, mortgage, or contract, the record of any deed of trust, mortgage, or real estate contract that has been recorded shall cease to be notice of the existence and lien of such deed of trust, mortgage, or contract as to subsequent encumbrancers and purchasers for value whose deeds, deeds of trust, mortgages, or other instruments shall be thereafter executed and recorded. Such deed of trust, mortgage, or contract shall be conclusively presumed to have been fully paid and discharged and the record thereof shall thereupon cease to be or constitute notice of the existence or lien thereof and shall be wholly void and thereafter shall not be construed to be any part of the public records in the office of the register of deeds as against subsequent purchasers and encumbrancers for value.

(2) Prior to the termination of the record and notice pursuant to subsection (1) of this section, the owner and holder of the deed of trust, mortgage, or contract may file for record with the register of deeds an affidavit to the effect that the deed of trust, mortgage, or contract is unpaid and is still a valid and subsisting lien. Upon the filing of such affidavit the record of the deed of trust, mortgage, or contract shall continue to exist and be valid as notice of the existence of such deed of trust, mortgage, or contract and of any lien thereof, for an additional period of ten years from the date of the filing of such affidavit. The owner and holder of such deed of trust, mortgage, or contract may alternatively file for record with the register of deeds a duly executed written extension agreement thereof in which event the record of the deed of trust, mortgage, or contract shall continue to exist and be valid as notice of the existence of such deed of trust, mortgage, or contract and of any lien thereof, for an additional period of ten years from the maturity of the deed of trust, mortgage, or contract debt as shown by the recorded extension agreement.

(3) Such periods of notice may be successively extended for additional periods. However, this section shall not be construed as to extend the time within which an action on any deed of trust, mortgage, or contract may be instituted, or in any manner to alter or amend the time within which any action on a deed of trust, mortgage, or contract may be brought under the general laws of this state. This section also shall not apply to mortgages or deeds of trust and instruments supplementary or amendatory thereto covering real estate as well as personal property, such property constituting a portion of property used in carrying on the business of a public utility or a gas or oil pipeline system, and executed to secure the payment of money. The lien of mortgages or deeds of trust and supplements and amendments thereto shall continue in force and effect as to any interest of the mortgagor in the real estate described therein, together with personal property, without the necessity of such renewal affidavit or extension agreement being made and filed, and notwithstanding that the same may have been on file for the period of time set out in this section. The mortgage or deed of trust or instruments supplementary or amendatory thereto shall disclose that the mortgagor or grantor therein is then carrying on the business of a public utility or a gas or oil pipeline system or the mortgagor or grantor has filed an affidavit to that effect for record with the register of deeds.

(4) It is the intent of the Legislature that the changes made by Laws 2005, LB 97, shall not affect or alter the status of any deed of trust, mortgage, or real estate sales contract rendered void prior to September 4, 2005.

Source:Laws 1941, c. 154, § 2, p. 600; C.S.Supp.,1941, § 76-279; R.S.1943, § 76-239; Laws 1957, c. 138, § 2, p. 461; Laws 2005, LB 97, § 1.    


Annotations

76-239.01. Construction finance; proceeds to apply payment of lawful claims for labor and material furnished; duty of contractor.

Any person, firm or corporation lending money for the purpose of financing the construction of improvements on real property, to be secured by a mortgage filed of record, is hereby required, before the disbursement of any proceeds under such loan, to notify the borrower in writing, separate from any written application, mortgage note, or any other loan document between the lender and the borrower, that it is the responsibility of the borrower or the borrower's contractor, if disbursements are to be made to such contractor, to apply the loan proceeds to the payment of lawful claims for labor and material furnished for such improvements and that failure of the borrower or his contractor to pay all lawful claims for labor and material could result in the filing of construction liens against the property. It shall be the duty of the contractor to whom any such disbursement is made to make such application of the loan proceeds.

Source:Laws 1969, c. 612, § 1, p. 2491.


Annotations

76-239.02. Contractor receiving loan disbursement; agent of borrower; exception.

Any such contractor receiving such loan disbursements and any funds of the borrower in addition to such loan disbursements shall be deemed to have consented to comply with the requirements of section 76-239.01 as to the application of such proceeds, and shall be deemed to be the agent of the borrower for so much of such proceeds as are necessary for the payment of such lawful claims for labor and material; Provided, that the foregoing provisions shall not apply where the contractor and the borrower are one and the same person. Nothing herein contained shall be construed to require the contractor to keep such proceeds in a separate account or accounts or to prorate payment of such proceeds to such lawful claims for labor and materials.

Source:Laws 1969, c. 612, § 2, p. 2491.


76-239.03. Sections shall not affect validity of mortgage rights of lender.

Nothing in sections 76-239.01 to 76-239.06 shall in any way affect the validity of the mortgage rights of the lender as provided for in section 76-238.01, or the lien rights of such lender.

Source:Laws 1969, c. 612, § 3, p. 2492.


76-239.04. Acceptance of proceeds without paying lawful claims or obtaining lien waiver; prima facie evidence of intent to deprive or defraud.

In any prosecution under sections 76-239.01 to 76-239.06 of the person, firm or corporation so receiving such proceeds, when it shall be shown in evidence that the contractor had knowledge of lawful claims for labor and material existing at the time of receipt of loan proceeds and that such person, firm or corporation has not paid such lawful claims for labor and material to the extent of the funds received by him, the fact of acceptance of such proceeds without having paid the lawful claims or obtained a lien waiver within thirty days after receipt of such proceeds shall be prima facie evidence of intent to deprive or defraud on the part of the person, firm or corporation so receiving payment.

Source:Laws 1969, c. 612, § 4, p. 2492.


76-239.05. Violations; penalty.

Any person, firm or corporation, the members of any firm, or the officers of any corporation, violating the provisions of sections 76-239.01 to 76-239.06 shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than six months or by both such fine and imprisonment.

Source:Laws 1969, c. 612, § 5, p. 2492.


76-239.06. Contractor, defined.

For the purposes of sections 76-239.01 to 76-239.06, the word contractor shall include any firm, person or corporation who acts in the capacity of a prime contractor, subcontractor or supplier for the construction of improvements on real property.

Source:Laws 1969, c. 612, § 6, p. 2492.


76-240. Repealed. Laws 1982, LB 592, § 2.

76-241. Deeds and other instruments; when not lawfully recorded.

All deeds, mortgages and other instruments of writing shall not be deemed lawfully recorded unless they have been previously acknowledged or proved in the manner prescribed by statute.

Source:R.S.1866, c. 43, § 17, p. 283; R.S.1913, § 6214; C.S.1922, § 5613; C.S.1929, § 76-219; R.S.1943, § 76-241; Laws 1973, LB 227, § 2.


Annotations

76-242. Acknowledgment in another state; recording; what constitutes sufficient authentication.

In all cases provided for in section 76-219, if such acknowledgment or proof is taken before a notary public or other officer using an official seal, except a commissioner appointed by the Governor of this state, the instrument thus acknowledged or proved shall be entitled to be recorded without further authentication. In all other cases the deed or other instrument shall have attached thereto a certificate of the clerk of a court of record, or other proper certifying officer of the county, district or state within which the acknowledgment or proof was taken, under the seal of his office, showing that the person, whose name is subscribed to the certificate of acknowledgment, was at the date thereof such officer as he is therein represented to be; that he is well acquainted with the handwriting of such officer; that he believes the signature of such officer to be genuine; and that the deed or other instrument is executed and acknowledged according to the laws of such state, district or territory.

Source:R.S.1866, c. 43, § 5, p. 280; R.S.1913, § 6201; C.S.1922, § 5600; C.S.1929, § 76-206; R.S.1943, § 76-242.


Annotations

76-243. Deed; record; absence of seal of person taking acknowledgment; when not objectionable.

It shall be no objection to the record of a deed that no official seal is appended to the recorded acknowledgment or proof thereof if, when the acknowledgment or proof purports to have been taken by an officer having an official seal, there is a statement in the certificate of acknowledgment or proof that the same is made under his hand and seal of office, and such statement shall be presumptive evidence that the affixed seal was attached to the original certificate.

Source:R.S.1866, c. 43, § 23, p. 285; Laws 1875, § 1, p. 90; R.S.1913, § 6218; C.S.1922, § 5617; C.S.1929, § 76-223; R.S.1943, § 76-243.


Annotations

76-244. Lost deed or instrument; how proved.

The copy of any record, or of any recorded deed or instrument, attested and authenticated in such manner as would by law entitle it to be read in evidence, may, on proof of the loss of the original and of the record, be again recorded, and such record shall have the same effect as the original record.

Source:R.S.1866, c. 43, § 24, p. 285; R.S.1913, § 6219; C.S.1922, § 5618; C.S.1929, § 76-224; R.S.1943, § 76-244.


76-245. Deeds and other instruments; where recorded.

Deeds and other instruments relating to or affecting the title of real estate in this state shall be recorded in the county in which such real estate, or any part thereof, is situated.

Source:R.S.1866, c. 43, § 21, p. 284; R.S.1913, § 6215; C.S.1922, § 5614; C.S.1929, § 76-220; R.S.1943, § 76-245.


Cross References

76-246. Conveyances; power of attorney; how revoked.

No instrument containing a power to convey, or in any manner to affect real estate, executed, acknowledged or proved, and certified and recorded in conformity with the requirements of sections 76-211 to 76-245 and 76-2,126, can be revoked by any act of the party or parties thereto until the instrument of revocation is executed, acknowledged or proved, and certified and filed for record with the register of deeds of the county in which the power is recorded.

Source:R.S.1866, c. 43, § 22, p. 285; Laws 1887, c. 30, § 17, p. 369; R.S.1913, § 6216; C.S.1922, § 5615; C.S.1929, § 76-221; R.S.1943, § 76-246; Laws 2012, LB536, § 33.    


76-247. Conveyances; power of attorney; copies, penalty.

A duly authenticated copy of the record of any power recorded in this state shall be entitled to record and shall operate to all intents and purposes, having the same force and effect, as the record of the original instrument. Such copy shall be duly authenticated only when there shall be attached thereto a certificate of the register of deeds under his hand and official seal, setting forth that the same is a true copy of the original record in his office, the date of the filing of the original instrument, and the volume and page where the same is recorded; Provided, it shall be unlawful for any register of deeds in this state to give a certified copy of any power of attorney which has been revoked and the revocation thereof filed in his office, without also stating the fact of such revocation in his certificate; and any person violating any of the provisions of this section shall be guilty of a Class V misdemeanor.

Source:Laws 1883, c. 64, § 1, p. 265; Laws 1887, c. 30, § 27, p. 373; R.S.1913, § 6217; C.S.1922, § 5616; C.S.1929, § 76-222; R.S.1943, § 76-247; Laws 1977, LB 39, § 207.


76-248. Wills; recording; how, when, and where authorized.

Any will of real estate, which shall have been duly proved in the county court of any county in this state, and any such will, the proof of which shall be contested in that court and carried up by appeal or otherwise and the validity of which shall be finally established, may, with the certificate of proof annexed thereto, be recorded in the office of the register of deeds of the county or counties where the real estate lies, in the same manner and with like effect as in case of deeds.

Source:R.S.1866, c. 43, § 25, p. 285; Laws 1887, c. 30, § 18, p. 369; R.S.1913, § 6220; C.S.1922, § 5619; C.S.1929, § 76-225; R.S.1943, § 76-248.


Cross References

76-248.01. Certificate of dissolution of marriage.

A certificate of dissolution of marriage executed by the clerk of the district court under section 42-372.02 may be recorded in the office of the register of deeds of the county or counties where the real estate is located. A certificate of dissolution of marriage shall not be used in lieu of a deed or other conveyance of real estate to carry out the terms of the dissolution decree or as evidence of title.

Source:Laws 2005, LB 361, § 24.    


76-249. Judgment in partition; decree in equity; recording; effect.

Any exemplification of any decree or judgment in partition on final decree in equity affecting real estate may in like manner be recorded in the office of the register of deeds in any county in which real estate described therein may be situated. Such record or exemplification thereof shall be received in evidence and shall be as effective in all cases as the original exemplification would be if produced, and shall be open to the same objection.

Source:R.S.1866, c. 43, § 26, p. 285; Laws 1887, c. 30, § 19, p. 370; R.S.1913, § 6221; C.S.1922, § 5620; C.S.1929, § 76-226; R.S.1943, § 76-249.


Cross References

Annotations

76-250. Wills; judgment in partition; decree in equity; certificate of dissolution of marriage; recording; how indexed.

On recording any will, exemplification, decree, or certificate of dissolution of marriage, the register of deeds shall index the same in the indices of deeds, and as nearly as may be as deeds are indexed, placing the name of the devisor, petitioner, or plaintiff, with the grantors, and the devisee, respondent, or defendant with the grantees.

Source:R.S.1866, c. 43, § 27, p. 286; Laws 1887, c. 30, § 20, p. 370; R.S.1913, § 6222; C.S.1922, § 5621; C.S.1929, § 76-227; R.S.1943, § 76-250; Laws 2005, LB 361, § 35.    


76-251. Deed intended as mortgage; recording; effect.

Every deed conveying real estate, which, by any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. The person for whose benefit such deed shall be made shall not derive any advantage from the recording thereof, unless every writing operating as a defeasance, or explaining its effect as a mortgage, or conditional deed, is also recorded therewith and at the same time.

Source:R.S.1866, c. 43, § 29, p. 286; R.S.1913, § 6223; C.S.1922, § 5622; C.S.1929, § 76-228; R.S.1943, § 76-251.


Annotations

76-252. Release of mortgage; required; when; failure to deliver; effect; damages.

When the obligation secured by any mortgage has been satisfied, the mortgagee shall, upon receipt of a written request by the mortgagor or the mortgagor's successor in interest or designated representative or by a holder of a junior trust deed or junior mortgage, execute and deliver a release of mortgage in recordable form to the mortgagor or mortgagor's successor in interest or designated representative, as directed in the written request.

Any mortgagee who fails to deliver such a release within sixty days after receipt of such written request shall be liable to the mortgagor or the mortgagor's successor in interest, as the case may be, for five thousand dollars or actual damages resulting from the failure, whichever is greater. In any action against the mortgagee pursuant to this section, the court shall award, in addition to the foregoing amounts, court costs, including reasonable attorney's fees, and may further order the mortgagee to execute a release. Successor in interest of the mortgagor shall include the current owner of the property and shall also include the person issuing a payoff check in accordance with the terms of a payoff letter from a mortgagee.

Source:Laws 1994, LB 1275, § 5; Laws 1995, LB 396, § 2; Laws 2002, LB 957, § 30;    Laws 2003, LB 218, § 18.    


76-253. Mortgage; record; certificate of discharge or satisfaction.

Any mortgage shall be discharged upon the record thereof by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, his legal personal representative or assignee, acknowledged or proved or certified as prescribed in sections 76-216 to 76-236, specifying that such mortgage has been paid, or otherwise satisfied and discharged.

Source:R.S.1866, c. 43, § 32, p. 287; Laws 1887, c. 30, § 22, p. 371; R.S.1913, § 6225; C.S.1922, § 5624; C.S.1929, § 76-230; R.S.1943, § 76-253; Laws 1963, c. 430, § 1, p. 1446.


Cross References

Annotations

76-254. Mortgage; record; certificate of discharge or satisfaction; how indexed.

Every such certificate and the proof or the acknowledgment thereof shall be indexed in the order of mortgages and recorded at full length. In the record of discharge the register of deeds shall make a reference to the book and page or computer system reference where the mortgage is recorded.

Source:R.S.1866, c. 43, § 33, p. 287; Laws 1887, c. 30, § 23, p. 271; R.S.1913, § 6226; C.S.1922, § 5625; C.S.1929, § 76-231; R.S.1943, § 76-254; Laws 1984, LB 679, § 14.


Annotations

76-255. Repealed. Laws 1994, LB 1275, § 13.

76-256. Mortgage; assignment; recording not notice to mortgagor.

The recording of an assignment of a mortgage shall not, in itself, be deemed notice of such assignment to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.

Source:R.S.1866, c. 43, § 44, p. 290; R.S.1913, § 6229; C.S.1922, § 5628; C.S.1929, § 76-234; R.S.1943, § 76-256.


Annotations

76-257. Deeds and other instruments; recording; duty of register of deeds to reference on instrument.

The register of deeds shall mark upon the deed or instrument, after recording the same, the book and page or computer system reference where the same is recorded.

Source:R.S.1866, c. 43, § 37, p. 287; Laws 1887, c. 30, § 24, p. 372; R.S.1913, § 6227; C.S.1922, § 5626; C.S.1929, § 76-232; R.S.1943, § 76-257; Laws 1984, LB 679, § 15.


76-258. Deeds and other instruments; formal defects; recorded for more than ten years; validated.

When any instrument of writing, in any manner affecting or purporting to affect the title to real estate, has been, or may hereafter be recorded for a period of ten years in the office of the register of deeds of the county wherein such real estate is situated, and such instrument, or the record thereof, because of defect, irregularity or omission, fails to comply in any respect with any statutory requirement or requirements relating to the execution, attestation, acknowledgment, certificate of acknowledgment, recording or certificate of recording, such instrument and the record thereof shall, notwithstanding any or all of such defects, irregularities and omissions, be fully legal, valid, binding and effectual for all purposes to the same extent as though such instrument had, in the first instance, been in all respects duly executed, attested, acknowledged and recorded.

Source:Laws 1941, c. 152, § 1, p. 593; C.S.Supp.,1941, § 76-276; R.S.1943, § 76-258.


Annotations

76-259. Deeds and other instruments; formal defects; what constitutes.

The defects, irregularities and omissions mentioned in section 76-258 shall include all defects and irregularities in respect to formalities of execution and recording, and all defects and irregularities in, as well as the entire lack or omission of attestation, acknowledgment, certificate of acknowledgment, or certificate of recording, and shall apply with like force to instruments whether or not the real estate involved is homestead.

Source:Laws 1941, c. 152, § 2, p. 593; C.S.Supp.,1941, § 76-277; R.S.1943, § 76-259.


76-260. Deeds and other instruments; recorded for more than ten years; effective as notice despite formal defects.

From and after its validation by the operation of section 76-258, such instrument shall impart notice to subsequent purchasers, encumbrancers, and all other persons whomsoever so far as and to the same extent that the same is recorded, notwithstanding such defects, irregularities or omissions; and such instrument, the record thereof, or a duly authenticated copy shall be competent evidence to the same extent as such instrument would have been competent if valid in the first instance.

Source:Laws 1941, c. 152, § 3, p. 593; C.S.Supp.,1941, § 76-278; R.S.1943, § 76-260.


76-261. Repealed. Laws 2004, LB 155, § 8.

76-262. Repealed. Laws 2004, LB 155, § 8.

76-263. Repealed. Laws 2004, LB 155, § 8.

76-264. Deeds executed in another state; omission of private seal, validated.

No deed of conveyance or other instrument affecting real estate in this state, which has been executed and acknowledged or proved in any other state, territory or district of the United States and which has been executed and acknowledged or proved in accordance with the laws of such state, territory or district, shall be held invalid because of the failure of the grantor to affix thereto his private seal, although the affixing of such private seal may be required by the laws of such state, territory or district. Every such deed of conveyance or other instrument, which has been so executed and acknowledged or proved, is declared to be legal, valid and binding, and all such deeds of conveyance or other instruments, and the record thereof in the office of the register of deeds of the county in which said real estate is situated, shall be competent evidence in the courts of this state.

Source:Laws 1917, c. 223, § 4, p. 546; C.S.1922, § 5657; C.S.1929, § 76-263; R.S.1943, § 76-264.


76-265. Repealed. Laws 2004, LB 155, § 8.

76-266. Trust deeds executed prior to 1917; failure to name beneficiary and record; presumption of authority of trustee to convey.

When any conveyance of the title to, or any interest in, or any lien on real estate shall have been made prior to July 24, 1917, to any person or corporation as trustee and no beneficiary is named therein, and no declaration of the terms of the trust shall have been made in writing and recorded in the office of the register of deeds of the county in which such real estate is located, and such person or corporation as trustee has thereafter conveyed said title or interest, or assigned or released said lien, it shall be presumed that such trustee had the power and authority to make such conveyance, assignment or lease. In all actions which may be brought after July 24, 1919, by any person claiming a right or interest in or to said real estate, or a lien thereon adverse to such conveyance, assignment or release by said trustee, the presumption that such trustee had power and authority to make such conveyance, assignment or release shall be conclusive.

Source:Laws 1917, c. 223, § 6, p. 547; C.S.1922, § 5659; C.S.1929, § 76-265; R.S.1943, § 76-266.


Annotations

76-267. Trust deeds executed prior to 1917; failure to record; presumption of authority of trustee to convey; filing of notice by beneficiary; effect.

Where any such conveyance or lien shall have been made prior to July 24, 1917, to any person or corporation as trustee and such trustee has not conveyed, assigned or released it before said date, and no declaration of the terms of the trust has been executed and recorded in the office of the register of deeds of the county in which such real estate is located, it shall be presumed that such person or corporation, as trustee, had power and authority to convey such right or interest in said real estate or to assign or release such lien thereon, and a purchaser in good faith from such trustee shall not be bound to inquire or ascertain the terms of the trust unless the person claiming a beneficial interest therein shall, within two years after July 24, 1917, have filed in the office of the register of deeds of the county where such real estate is located, a notice verified by his affidavit describing the real estate in which he claims an interest and stating what right or interest therein he claims, and his place of residence.

Source:Laws 1917, c. 223, § 6, p. 547; C.S.1922, § 5659; C.S.1929, § 76-265; R.S.1943, § 76-267.


76-268. Trust deeds executed after 1917; failure to name beneficiary and record; presumption of authority of trustee to convey; filing of notice by beneficiary.

If any conveyance of the title to, or any right or interest in real estate, or any lien thereon, shall be made after July 24, 1917, to any person or corporation as trustee without naming any beneficiary and without any declaration of the terms of the trust having been executed and recorded in the manner prescribed by statute, in the office of the register of deeds of the county in which such real estate is located, it shall be conclusively presumed that such person or corporation as trustee, has power and authority to convey the title, right and interest in such real estate which has been conveyed to him, or to assign or release such lien without any other person joining therein, and a purchaser from such trustee shall not be bound to inquire or ascertain the terms of the trust, unless before such conveyance, assignment or release has been made by such trustee, the person claiming a beneficial interest therein shall have filed a notice as provided in section 76-267, in the office of the register of deeds of the county in which said real estate is located.

Source:Laws 1917, c. 223, § 6, p. 547; C.S.1922, § 5659; C.S.1929, § 76-265; R.S.1943, § 76-268.


76-269. Instrument recorded more than fifteen years without contest; validity.

After one year from July 24, 1917, no action shall be maintained whereby to set aside, cancel, annul, declare void or invalid any deed of conveyance, mortgage, release of mortgage, or other instrument affecting the title to any real estate, which has been recorded in the office of the register of deeds of the county or counties in this state in which such real estate is situated for more than fifteen years prior to the commencement of such action, and purporting to be executed by any executor, administrator, guardian, receiver or trustee, notwithstanding any defect in, or absence of, any record of the court granting authority to such executor, administrator, guardian, receiver or trustee to execute the same. Unless such deed of conveyance, mortgage, release of mortgage or other instrument shall have been modified or set aside by an action or proceeding commenced within one year after said date or within fifteen years from the date of recording thereof, it shall be conclusively presumed that such executor, administrator, guardian, receiver or trustee had due authority to execute the same, notwithstanding such defect in, or absence of, any record of such court. This section shall not release any such executor, administrator, guardian, receiver or trustee from any liability or responsibility to which he is subject.

Source:Laws 1917, c. 223, § 8, p. 549; C.S.1922, § 5661; Laws 1923, c. 101, § 1, p. 256; C.S.1929, § 76-267; Laws 1935, c. 149, § 1, p. 553; C.S.Supp.,1941, § 76-267; R.S.1943, § 76-269.


76-269.01. Deed of conveyance executed by a personal representative; validity.

On and after September 9, 1997, no action may be maintained to set aside any deed of conveyance executed by a personal representative of an estate prior to September 9, 1993, upon the grounds that the personal representative lacked authority conferred by the will of the decedent to convey real estate without court order or that a court order authorizing the sale of the real estate was invalid.

Source:Laws 1994, LB 188, § 2.


76-270. Grantee represented as corporation; conveyance more than ten years from recording; validity.

Where any grantee takes title to real estate in this state under a name including the word company or corporation, whether such grantee was or was not in fact a corporation, and where such grantee subsequent to the date that such title is taken conveys all of such land or part thereof, through a deed executed on behalf of such grantee by any person or persons, after ten years from the recording thereof such deed shall be as good, valid, legal and effectual as though such grantee had been at the time of receiving and conveying said land, a corporation de jure, and said deed conveying said land had been executed and acknowledged on its behalf by the officers and in the manner provided by law.

Source:Laws 1937, c. 166, § 1, p. 634; C.S.Supp.,1941, § 76-275; R.S.1943, § 76-270; Laws 1947, c. 245, § 1, p. 769.


76-270.01. Repealed. Laws 1949, c. 31, § 19.

76-271. Affidavits to correct defects; recording; effect.

Affidavits explaining or correcting any apparent defect in the chain of title to any real estate, may be recorded as instruments affecting real estate, and such record shall be prima facie evidence of the facts therein recited.

Source:Laws 1913, c. 75, § 1, p. 218; R.S.1913, § 6253; C.S.1922, § 5652; C.S.1929, § 76-258; R.S.1943, § 76-271.


Annotations

76-272. Affidavits to correct defects; validity.

All such instruments now appearing of record in the chain of title to any real estate, are legalized; and they shall have the same force and effect as those herein provided for.

Source:Laws 1913, c. 75, § 2, p. 219; R.S.1913, § 6254; C.S.1922, § 5653; C.S.1929, § 76-259; R.S.1943, § 76-272.


Annotations

76-273. Repealed. Laws 1975, LB 279, § 75.

76-274. Merger of lien with fee; when presumed.

Whenever an interest in the fee title to any real estate in this state and an interest in a mortgage or other lien affecting the same interest shall become vested in the same person, and such person subsequently conveys such fee title by deed, unless a contrary intent is expressed by the terms of such deed, it shall be conclusively presumed in favor of subsequent purchasers and encumbrancers for value and without notice, that such lien interest merged with the fee and was conveyed by such deed and that such lien was thereby released from the fee interest so conveyed.

Source:Laws 1935, c. 150, § 1, p. 555; C.S.Supp.,1941, § 76-273; R.S.1943, § 76-274.


Annotations

76-275. Merger of lien with fee; subsequent conveyance; presumption; action to enforce lien, when barred.

After one year from April 13, 1935, in all cases where before such date an interest in the fee title to any real estate in this state and an interest in a mortgage or other lien affecting the same interest have become vested in the same person and such person subsequently conveyed such fee title by deed, unless a contrary intent is expressed by the terms of such deed, it shall be presumed in favor of subsequent purchasers for value and without notice that such lien interest was merged with the fee and conveyed by such deed and that such lien was thereby released from the fee interest so conveyed. After April 13, 1936, no action shall be brought whereby to enforce such lien against subsequent purchasers and encumbrancers for value unless the claimant of such lien shall before that date file with the register of deeds of the county where the land is located an affidavit reciting the book and page or computer system reference where the deed of conveyance is recorded and that the claimant did not intend to merge or convey such lien interest by such deed.

Source:Laws 1935, c. 150, § 2, p. 555; C.S.Supp.,1941, § 76-274; R.S.1943, § 76-275; Laws 1984, LB 679, § 16.


76-275.01. Conveyance by married persons to themselves prior to August 24, 1941, as joint tenants; validity.

Unless action is brought before September 7, 1948, to set aside the deed upon that ground, all deeds of conveyance executed by any person to himself or herself and the spouse of such person or by married persons direct to themselves as joint tenants with right of survivorship, which deeds were executed and recorded prior to August 24, 1941, be and the same hereby are legalized and validated as though a married person had the power, prior to August 24, 1941, to convey property directly to his or her spouse in the same manner and to the same extent as if he or she were unmarried.

Source:Laws 1947, c. 248, § 1, p. 772.


Cross References

76-275.02. Conveyance by married persons to themselves prior to August 24, 1941, as joint tenants; limitation of action.

After September 7, 1948, no action may be maintained to set aside any deed of conveyance mentioned in section 76-275.01, which deed was executed and recorded prior to August 24, 1941, upon the ground that the grantor or grantors therein did not have the legal power and right to make a conveyance direct to such grantee and spouse or themselves in such manner.

Source:Laws 1947, c. 248, § 2, p. 772.


76-275.03. Vacation of street or alley for more than ten years; effect of conveyance of adjoining platted lots.

After one year from May 18, 1957, when (1) all or part of an adjoining street, avenue, or alley has been duly vacated under the applicable laws that all or a portion of such vacated street, avenue, or alley reverted to the owner of the adjoining platted lot, (2) a deed or deeds executed subsequent to such vacation and covering such platted lot have been of record more than ten years, and (3) there has been filed of record no instrument purporting to establish a contrary intent, the deed or deeds to the platted lot, without describing the vacated street, avenue, or alley, shall be irrevocably deemed to constitute a conveyance of the platted lot together with the reverted portion of such vacated street, avenue, or alley.

Source:Laws 1957, c. 317, § 1, p. 1135; Laws 1963, c. 431, § 1, p. 1447.


Cross References

76-275.04. Recitals; intent.

When any instrument affecting title to real property is required by law to be recorded in any public record in order to be valid or effective or perfected either against all persons or against any person or persons or class of persons, and when any notice or statement concerning any instrument affecting title to real property is required by law so to be recorded in order for such instrument to be so valid or effective or perfected, no reference or recital as to such instrument contained in any other recorded instrument shall be notice of it to any person not an immediate party to the instrument making the reference, or put any such person upon inquiry concerning it, unless (1) the instrument referred to, or the notice or statement thereof in the form so required by law, has been recorded as so required prior to the recording of the reference or recital, and either the reference or recital specifies the public records and place therein where the instrument, notice or statement is to be found, or the instrument, notice or statement is in the chain of record title to the real property affected within a period of twenty years prior to the recording of the reference or recital, or (2) if the reference or recital has been made before September 28, 1959, unless the instrument, statement or notice is recorded as required by law not later than one year thereafter.

Source:Laws 1959, c. 348, § 1, p. 1234.


76-275.05. Recitals; validity; requirements.

When any reference or recital is made in any recorded instrument as to any restriction, agreement, easement, mortgage or other encumbrance of any kind affecting real property, customarily created by recorded instrument or instrument of which a notice or statement provided by statute is recorded, or as to any such encumbrance in general terms, and the reference or recital does not specify the public records and place therein where the instrument creating the encumbrance or such notice or statement of it is to be found, the reference or recital shall unless a contrary intent clearly appears be construed to refer only to encumbrances, if any, of the kind therein described created by instruments included, or of which such a notice or statement is included, in the chain of record title to the real property affected within a period of twenty years prior to the recording of the reference or recital, and the fact that there are none within the period shall not be construed to indicate a contrary intent.

Source:Laws 1959, c. 348, § 2, p. 1234.


76-275.06. Plat of city or village lots; validity.

When any plat of city or village lots in this state has been filed of record on or before January 1, 1937, and has not been vacated, it shall be conclusively presumed that the person filing such plat was, on the date of filing thereof, the owner, in fee simple, of the real estate described therein, free and clear of any liens or encumbrances of any kind unless action on any claimed lien or encumbrance is brought within one year from September 28, 1959. Whenever, after September 28, 1959, any plat of city or village lots in this state has been filed of record, accompanied by an affidavit of the person so filing setting forth the liens or encumbrances, if any, against such real estate, it shall be conclusively presumed that such person was the owner thereof, in fee simple, subject only to the liens or encumbrances disclosed by such affidavit unless, within twenty-three years after the filing thereof, an action is brought on any other claimed lien or encumbrance.

Source:Laws 1959, c. 349, § 1, p. 1236.


76-275.07. Cotenancy; when presumed.

When any conveyance of a present interest in real estate is made to more than one person and the grantees are named in the disjunctive, the conveyance shall be conclusively presumed to create a cotenancy in all the named grantees.

Source:Laws 1981, LB 96, § 1.


76-276. Mortgages; mortgagor retains legal title, when; security interest in rents; effect.

In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof. This section shall not limit or otherwise affect the creation, provision, assignment, granting, or enforcement of a security interest in rents arising from real estate pursuant to sections 52-1701 to 52-1708.

Source:R.S.1866, c. 43, § 85, p. 297; R.S.1913, § 6230; C.S.1922, § 5629; C.S.1929, § 76-235; R.S.1943, § 76-276; Laws 1993, LB 14, § 9.


Annotations

76-277. Conveyances; claims and improvements upon public lands; law applicable.

Sections 76-201 to 76-281 and 76-2,126 apply to the conveyance of all claims and improvements upon the public lands.

Source:R.S.1866, c. 43, § 35, p. 287; R.S.1913, § 6231; C.S.1922, § 5630; C.S.1929, § 76-236; R.S.1943, § 76-277; Laws 2012, LB536, § 34.    


Cross References

76-278. United States patents and certificates; where recorded.

All certificates of the register and receiver of any United States Land Office of the entry or purchase of any tract of land, and all letters patent of land from the United States lying in this state, shall be recorded in the county in which the land lies, and where any patent as above, contains descriptions of land lying in more than one county, or otherwise, it shall be lawful to record in any county the whole of the descriptions of land situated therein without recording all descriptions contained in the patent. All maps and profiles required by the government of the United States to be filed by any railroad company in any general or district land office of the United States, for the completion of the title of such company to any right-of-way granted by the United States, shall be entitled to record in the office of the register of deeds or county clerk, as the case may be, in the same manner as plats of cities and villages, and the same effect shall be given thereto as to such plats when thus filed; Provided, such record shall include all the granting or conveying part or language of such patent, and the records of such certificates and patents, and all copies thereof so recorded, duly certified by the register of deeds, shall be prima facie evidence of the existence of such certificates and patents, and conclusive evidence of the existence of such record.

Source:R.S.1866, c. 43, § 45, p. 290; Laws 1883, c. 63, § 1, p. 264; Laws 1887, c. 30, § 25, p. 372; Laws 1911, c. 97, § 1, p. 362; R.S.1913, § 6246; C.S.1922, § 5645; C.S.1929, § 76-251; R.S.1943, § 76-278.


76-279. Public lands; improvements; conveyances; effect.

All deeds of quitclaim or other conveyance of all improvements upon public lands shall be as binding and effectual in law and equity between the parties, for conveying of the title of the grantor in and to the same, as in cases where the grantor has the fee simple to the premises.

Source:R.S.1866, c. 24, § 2, p. 187; R.S.1913, § 6247; C.S.1922, § 5646; C.S.1929, § 76-252; R.S.1943, § 76-279.


Annotations

76-280. Public lands; improvements; contracts to sell authorized.

All contracts, promises, assumpsits or undertakings, either written or verbal, which shall be made in good faith and without fraud, collusion or circumvention, for sale, purchase or payment of improvements made on the lands owned by the government of the United States shall be deemed valid in law or equity, and may be sued for and recovered as in other contracts.

Source:R.S.1866, c. 24, § 1, p. 186; R.S.1913, § 6248; C.S.1922, § 5647; C.S.1929, § 76-253; R.S.1943, § 76-280.


76-281. Patent issued to deceased person; effect.

Where patents for public lands have been or may be issued, in pursuance of any law of the State of Nebraska, to a person who has died, the title to the land designated therein shall inure to and become vested in the heirs, devisees or assignees of such deceased patentee as if the patent had issued to the deceased person during life.

Source:Laws 1905, c. 64, § 1, p. 321; R.S.1913, § 6249; C.S.1922, § 5648; C.S.1929, § 76-254; R.S.1943, § 76-281.


76-282. Public lands; entry by purchaser at sale by county court; rights under patent issued to original claimant.

Whenever any person referred to in the third section of the Act of Congress entitled "An act to provide for the location of certain confirmed land claims in the State of Missouri, and for other purposes," approved June 21, 1828 (11 Statutes at Large, 294 and 295), has had a private land claim which has not been located and satisfied, has died before making the entry therein authorized of public land, and his right so to do has been sold by order of the county court of the county and state of his residence, and the entry of public lands in this state has been made by the purchaser or his grantee, and letters patent of the United States have issued to the original claimant or his legal representatives, it shall be competent for the purchaser or his grantee to cause to be recorded in the book of deeds in the office of the county clerk of the county in which the land is situated, a copy of the proceedings of the county court upon which the right of the original claimant was sold as aforesaid, together with the proceedings of the several officers on such sale. Such copy shall be duly certified by said court, and the record so made in the county clerk's office shall be taken and held by all courts of this state as evidence of the transfer of the right to make such entry in the land office, and of the title of the purchaser and his grantees to the lands patented as aforesaid. A copy of the record in the county clerk's office, certified by that officer, may be read in evidence with the like force and effect as the original papers.

Source:Laws 1885, c. 66, § 1, p. 298; R.S.1913, § 6281; C.S.1922, § 5800; C.S.1929, § 76-801; R.S.1943, § 76-282.


Annotations

76-283. Town lots; equitable owners; failure to demand deed within three years; effect.

All persons who shall be or may become the owners of any equities of title in and to any town lot or lots or land within any incorporated town or city in this state, by virtue of which they shall be entitled to demand and receive from the corporate authorities a title in fee simple to the same, shall present their claims and make demand for the deed within three years after such entry by the town or city as a townsite; Provided, if any person shall neglect to comply with the terms of this section as aforesaid, the title in and to such realty shall vest in the corporation as fully, and to all intents and purposes, as though conveyed to such town or city by deed of general warranty.

Source:Laws 1867, § 1, p. 94; R.S.1913, § 6282; C.S.1922, § 5801; C.S.1929, § 76-802; R.S.1943, § 76-283.


76-284. Town lots; section, how construed.

Section 76-283 shall be construed to apply to rights acquired previous to the entry of the land; and in no case to the rights of parties acquired under or by virtue of any tax sale.

Source:Laws 1867, § 2, p. 94; R.S.1913, § 6283; C.S.1922, § 5802; C.S.1929, § 76-803; R.S.1943, § 76-284.


76-285. Public lands; occupation as townsite; entry, when authorized.

In all cases in which any of the public land of the United States has been or shall be selected and occupied as a townsite, if the inhabitants of such townsite shall be at the time incorporated, it shall be the duty of the corporate authorities of such city or village, or if not incorporated, then of the county judge of the county in which such townsite is situated, whenever called on by any of the occupants of such town, and the money for the entry of such townsite has been furnished, to enter such townsite under the Act of Congress in such case made and provided.

Source:Laws 1907, c. 155, § 1, p. 486; R.S.1913, § 6284; C.S.1922, § 5803; C.S.1929, § 76-804; R.S.1943, § 76-285.


76-286. Public lands; entry as townsite; deeds; to whom made.

When a townsite is entered under the Act of Congress mentioned in section 76-285, deeds shall be made by the proper corporate officers or by the county judge and their successors in office to the inhabitants of such townsite, according to their respective rights or to the purchasers of lots.

Source:Laws 1907, c. 155, § 2, p. 487; R.S.1913, § 6285; C.S.1922, § 5804; C.S.1929, § 76-805; R.S.1943, § 76-286.


76-287. Public lands; occupation as townsite; deeds validated.

All deeds made prior to July 5, 1907, for such townsite, lots or lands therein situated, made by corporate officers or county judges, are declared to be valid.

Source:Laws 1907, c. 155, § 3, p. 487; R.S.1913, § 6286; C.S.1922, § 5805; C.S.1929, § 76-806; R.S.1943, § 76-287.


76-288. Marketable record title; unbroken chain of title of record twenty-two years or longer; exceptions.

Any person having the legal capacity to own real estate in this state, who has an unbroken chain of title to any interest in real estate by such person and his or her immediate or remote grantors under a deed of conveyance which has been recorded for a period of twenty-two years or longer, and is in possession of such real estate, shall be deemed to have a marketable record title to such interest, subject only to such claims thereto and defects of title as are not extinguished or barred by the application of the Uniform Environmental Covenants Act and sections 25-207, 25-213, 40-104, and 76-288 to 76-298, instruments which have been recorded less than twenty-two years, and any encumbrances of record not barred by the statute of limitations.

Source:Laws 1947, c. 243, § 1, p. 762; Laws 2005, LB 298, § 15.    


Cross References

Annotations

76-289. Unbroken chain of title; title transaction; defined.

A person shall be deemed to have the unbroken chain of title to an interest in real estate as such terms are used in sections 25-207, 25-213, 40-104, and 76-288 to 76-298 when the official public records of the county wherein such land is situated disclose a conveyance or other title transaction dated and recorded twenty-two years or more prior thereto, which conveyance or other title transaction purports to create such interest in such person or his immediate or remote grantors, with nothing appearing of record purporting to divest such person and his immediate or remote grantors of such purported interest.

Title transaction as used in sections 25-207, 25-213, 40-104, and 76-288 to 76-298, means any transaction affecting title to real estate, including title by will or descent from any person who held title of record at the date of his death, title by a decree or order of any court, title by tax deed or by trustee's, referee's, guardian's, executor's, master's in chancery, or sheriff's deed, as well as by direct conveyance.

Source:Laws 1947, c. 243, § 2, p. 763.


Annotations

76-290. Marketable record title; claim; limitation.

Such marketable title shall be held by such person and shall be taken by his successors in interest free and clear of all interest, claims, and charges whatever, the existence of which depends in whole or in part upon any act, transaction, event, or omission that occurred twenty-two years or more prior thereto, whether such claim or charge be evidenced by a recorded instrument or otherwise, and all such interests, claims, and charges affecting such interest in real estate shall be barred and not enforceable at law or equity, unless any person making such claim or asserting such interest or charge shall, on or before twenty-three years from the date of recording of deed of conveyance under which title is claimed, or within one year from April 8, 1947, whichever event is the latest in point of time, file for record a notice in writing, duly verified by oath, setting forth the nature of his claim, interest or charge; and no disability nor lack of knowledge of any kind on the part of anyone shall operate to extend the time for filing such claims after the expiration of twenty-three years from the recording of such deed of conveyance or one year after April 8, 1947, whichever event is the latest in point of time.

Source:Laws 1947, c. 243, § 3, p. 763.


76-291. Claim; notice; who may file.

The notice mentioned in section 76-290 may be filed for record by the claimant of any interest therein described or by any other person acting on behalf of a claimant who is under disability, unable to assert a claim on his own behalf, or one of a class but whose identity cannot be established or is uncertain at the time of filing such claim for record.

Source:Laws 1947, c. 243, § 4, p. 764.


76-292. Claim; requisites; recorded.

The claim referred to in sections 76-290 and 76-291 shall be filed in each county where the claimed real estate, or any part thereof, is located, and must set forth the legal description of the real estate affected by such claim together with a statement of the nature of the claim, charge or interest asserted. The description shall be set forth in particular terms and not by general inclusions.

Source:Laws 1947, c. 243, § 5, p. 764.


76-293. Notices; recording.

The register of deeds of each county shall accept all such notices which describe real estate located within the county which he serves and shall enter and record such notices in full among miscellaneous instruments and index the same.

Source:Laws 1947, c. 243, § 6, p. 764.


76-294. Possession; proof by affidavit; recording.

For the purpose of sections 25-207, 25-213, 40-104, and 76-288 to 76-298, the fact of possession of real estate referred to in section 76-288 may be shown of record by one or more affidavits which shall contain the legal description of the real estate referred to and show that the record titleholder is upon the date thereof in possession of such real estate. The register of deeds shall record such affidavit or affidavits in the miscellaneous records of his county.

No such affidavits of possession shall be filed as to any real estate before the expiration of twenty-three years from the recording of deed of conveyance under which title is claimed, or before one year after April 8, 1947, whichever event is the latest in point of time, as to any real estate as to which a claim under the provisions of section 76-292 shall have been filed.

Source:Laws 1947, c. 243, § 7, p. 764.


76-295. Statutes of limitations; not extended; applicability of sections.

Nothing contained in sections 25-207, 25-213, 40-104, and 76-288 to 76-298 shall be construed to extend the period for bringing an action or doing any act required under any existing statute of limitations, nor to affect the operation of any existing acts governing the effect of the recording or the failure to record any instrument affecting lands.

Source:Laws 1947, c. 243, § 8, p. 765.


76-296. Notices; slander of title; damages.

No person shall use the privilege of filing notices hereunder for the purpose of slandering the title to real estate and in any action brought for the purpose of quieting title to real estate, if the court shall find that any person has filed a claim for the purpose only of slandering title to such real estate, the court shall award the plaintiff all the costs of such action, including attorney fees to be fixed and allowed to the plaintiff by the court, and all damages that plaintiff may have sustained as the result of such notice of claim having been filed for record.

Source:Laws 1947, c. 243, § 9, p. 765.


Annotations

76-297. Sections; how construed.

Sections 25-207, 25-213, 40-104, and 76-288 to 76-298 shall be construed to effect the legislative purpose of simplifying and facilitating real estate title transactions by allowing persons to deal with the record title owner as defined herein and to rely upon the record title covering a period of twenty-two years or more subsequent to the recording of deed of conveyance as set out in section 76-288, and to that end to bar all claims that affect or may affect the interest thus dealt with, the existence of which claims arises out of or depends upon any act, transaction, event, or omission occurring before the recording of such deed of conveyance, unless a notice of such claim, as provided in section 76-292, shall have been duly filed for record. The claims hereby barred shall mean any and all interests of any nature whatever, however denominated, whether such claims are asserted by a person sui juris or under disability, whether such person is or has been within or without the state, and whether such person is natural, corporate, private, or governmental.

Source:Laws 1947, c. 243, § 10(1), p. 765.


76-298. Sections; applicability.

Sections 25-207, 25-213, 40-104, and 76-288 to 76-298 shall not be (1) applied to bar (a) the rights of any lessor or his successor as reversionary of his right to possession on the expiration of any lease by reason of failure to file the notice herein required; (b) the rights of any remainderman upon the expiration of any life estate or trust created before the recording of deed of conveyance as set out in section 76-288; (c) rights founded upon any mortgage, trust deed, or contract for sale of lands which is not barred by the statute of limitations; or (d) conditions subsequent contained in any deed; nor (2) deemed to affect the right, title or interest of the State of Nebraska, or the United States, in any real estate in Nebraska.

Source:Laws 1947, c. 243, § 10(2), p. 766.


76-299. Reverter or rights of entry for breach of condition subsequent; not alienable or devisable.

Possibilities of reverter or rights of entry or reentry for breach of condition subsequent are hereby declared to be future interests and shall not be alienable or devisable; and no conveyance thereof made after May 15, 1959, shall operate in favor of the grantee or persons claiming under such grantee.

Source:Laws 1959, c. 350, § 1, p. 1237.


Annotations

76-2,100. Reverter or rights of entry; termination of trust; succession.

At the termination of a trust, however effected, any right of entry or reentry for breach of condition subsequent and any possibility of reverter heretofore or hereafter reserved by or to the trustee and affecting land in this state ceases and determines as to the trustee, but shall, at such termination pass to the person or persons who receive the assets of the trust.

Source:Laws 1959, c. 350, § 2, p. 1237.


Annotations

76-2,101. Reverter or rights of entry; dissolution of corporation; ceases and determines.

When a corporation is dissolved or ceases to exist, any possibility of reverter and any right of entry or reentry for breach of condition subsequent heretofore or hereafter reserved by or to the corporation and affecting land in this state ceases and determines.

Source:Laws 1959, c. 350, § 3, p. 1237.


Annotations

76-2,102. Reverter or rights of entry; limitation.

Neither possibilities of reverter nor rights of entry or reentry for breach of condition subsequent, whether heretofore or hereafter created, where the condition has not been broken shall be valid for a longer period than thirty years from the date of the creation of the condition or possibility of reverter. If such a possibility of reverter or right of entry or reentry is created to endure for a longer period than thirty years, it shall be valid for thirty years.

Source:Laws 1959, c. 350, § 4, p. 1237.


Annotations

76-2,103. Reverter or rights of entry; commencement of action for breach; limitation.

If by reason of a possibility of reverter created more than thirty years prior to May 15, 1959, a reverter has come into existence prior to May 15, 1959, no person shall commence an action for the recovery of the land or any part thereof based upon such possibility of reverter, after one year from May 15, 1959.

If by reason of a breach of a condition subsequent created more than thirty years prior to May 15, 1959, a right of reentry has come into existence prior to May 15, 1959, no person shall commence an action for the recovery of the land or any part thereof based upon such right of entry or reentry after one year from May 15, 1959, unless entry or reentry has been actually made to enforce said right before the expiration of such year.

Source:Laws 1959, c. 350, § 5, p. 1237.


76-2,104. Reverter or rights of entry; other rights; sections; applicability.

Subsections (2) and (3) of section 76-107 and sections 76-299 to 76-2,105 shall not invalidate or affect:

(1) A conveyance made for the purpose of releasing or extinguishing a possibility of reverter or right of entry or reentry;

(2) A right of entry or the transfer of a right of entry for default in payment of rent reserved in a lease or for breach of covenant contained in a lease, when such transfer is in connection with a transfer of a reversion and the rent reserved in the lease;

(3) A right of reentry or the transfer of a right of entry for default in payment of a rent granted or reserved in any deed or grant or for breach of any covenant in any deed or grant when a rent is granted or reserved, if such transfer is in connection with a transfer of a rent so granted or the transfer of a rent so reserved;

(4) Any rights of a mortgagor based upon the terms of the mortgage, any rights of a trustee or a beneficiary under a trust deed in the nature of a mortgage based upon the terms of the trust deed, or any rights of grantor under a vendor's lien reserved in a deed; or

(5) Any condition, restrictive covenant, limitation, or possibility of reverter or right of entry or reentry for breach of condition subsequent contained in any grant or easement to any railroad or other public utility for the establishment and operation of a transportation system, communication or transmission lines, or public highways.

Source:Laws 1959, c. 350, § 6, p. 1238; Laws 1988, LB 657, § 3.


Annotations

76-2,105. Reverter or rights of entry; sections; severability.

If any provision of sections 76-299 to 76-2,105 or the application of any provision thereto to any property, person, or circumstance is held to be invalid, such provision as to such property, person, or circumstance shall be deemed to be excised from sections 76-299 to 76-2,105, and the invalidity thereof as to such property, persons, or circumstances shall not affect any of the other provisions of sections 76-299 to 76-2,105 or the application of such provision to property, persons, or circumstances other than those as to which it is invalid, and sections 76-299 to 76-2,105 shall be applied and shall be effective in every situation so far as its constitutionality extends.

Source:Laws 1959, c. 350, § 7, p. 1239.


76-2,106. Terms, defined.

As used in sections 76-2,106 to 76-2,108, unless the context otherwise requires:

(1) Dual contracts shall mean two written contracts entered into between identical contracting persons in identical capacities concerning the same parcel of real property, one of which states the true and actual purchase price and one of which states a purchase price in excess of the true and actual purchase price and is used as an inducement to make a loan commitment on such real property in reliance upon the stated inflated value; and

(2) Fraudulent instrument shall mean any paper, document, or other form in writing that is intentionally used as subterfuge or device to induce the making of a loan or the extension of credit as a part of a transaction whereby either the title to real property is transferred or valuable improvements are placed on real property in this state, whether for the benefit of the inducer or another.

Source:Laws 1969, c. 610, § 1, p. 2476.


76-2,107. Dual contracts; substituting one instrument for another; fraudulent instrument; unlawful.

No person, firm, or corporation, or any agent or employee of any such firm or corporation shall, with intent to defraud (1) make or issue a dual contract for the purchase of real property, (2) substitute one instrument in writing for another and by such means cause the making of a loan or the extension of credit, with respect to transactions whereby either the title to real property is transferred or valuable improvements are placed on real property in this state, whether for the benefit of the inducer or another, or (3) induce by any fraudulent instrument in writing the making of a loan or the extension of credit as a part of a transaction whereby either the title to real property is transferred or valuable improvements are placed on real property in this state, whether for the benefit of the inducer or another.

Source:Laws 1969, c. 610, § 2, p. 2477.


76-2,108. Violations; penalty.

Any person violating the provisions of section 76-2,107 shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than five days nor more than thirty days, or by both such a fine and imprisonment.

Source:Laws 1969, c. 610, § 3, p. 2477.


76-2,109. Joint tenancy; no severance of real estate; exception.

There shall be no severance of an existing joint tenancy in real estate when all joint tenants execute any instrument with respect to the property held in joint tenancy, unless the intention to effect a severance expressly appears in the instrument.

Source:Laws 1979, LB 73, § 1.


76-2,110. Instruments to subdivide real estate; defective; validation; procedure.

(1) After January 1, 1995, no action shall be maintained to set aside, cancel, annul, or declare void or invalid any conveyance, in any manner purporting to subdivide real estate, which has been recorded in the office of the register of deeds of the county in which the real estate is situated for more than five years prior to the commencement of the action on the ground that the conveyance or the recording of the conveyance has failed to comply with any requirement relating to subdivision approval. Unless the conveyance is modified or set aside by an action or proceeding commenced by January 1, 1995, or five years after the date of recording of the conveyance, whichever is later, it shall be conclusively presumed that the conveyance is fully valid notwithstanding any failure to comply with any requirement relating to subdivision approval.

(2) If any conveyance, in any manner purporting to subdivide real estate, has been or is hereafter recorded in the office of register of deeds of the county in which the real estate is situated and the conveyance or the recording of the conveyance has failed to comply with any requirement relating to subdivision approval and if the conveyance has not been otherwise validated under subsection (1) of this section, any party claiming an interest in such conveyance may file an affidavit with the register of deeds asserting that written notice of the defect in approval has been received by the governmental authority having subdivision approval jurisdiction over such real estate. Upon filing such affidavit, such governmental authority shall have one hundred twenty days from the receipt of such written notice to record an objection in the office of register of deeds in the county in which the real estate is situated, or such conveyance shall be fully valid. If an objection is filed, the conveyance shall not be validated. The objection shall be in the form of a resolution adopted after public hearing. The governmental authority may waive, prospectively waive, or retroactively waive such notice or such one-hundred-twenty-day period, as to a single subdivision or any category of subdivisions.

(3) Notwithstanding the validity of any such conveyance under this section, the subdivider shall not thus be relieved of any penalty lawfully imposed by such governmental authority for the failure to otherwise comply with any requirement relating to subdivision approval. Any conveyance of real estate for the public use shall be valid only upon express approval of such governmental authority. Other than for purposes of validating a conveyance, this section shall not excuse compliance with applicable zoning or subdivision ordinances of the governmental authority having subdivision approval jurisdiction over such real estate.

Source:Laws 1980, LB 235, § 1; Laws 1994, LB 188, § 1.


76-2,111. Terms, defined.

As used in the Conservation and Preservation Easements Act, unless the context otherwise requires:

(1) Conservation easement shall mean a right, whether or not stated in the form of an easement, restriction, covenant, or condition in any deed, will, agreement, or other instrument executed by or on behalf of the owner of an interest in real property imposing a limitation upon the rights of the owner or an affirmative obligation upon the owner appropriate to the purpose of retaining or protecting the property in its natural, scenic, or open condition, assuring its availability for agricultural, horticultural, forest, recreational, wildlife habitat, or open space use, protecting air quality, water quality, or other natural resources, or for such other conservation purpose as may qualify as a charitable contribution under the Internal Revenue Code;

(2) Preservation easement shall mean a right, whether stated in the form of an easement, restriction, covenant, or condition in any deed, will, agreement, or other instrument executed by or on behalf of the owner of an interest in real property imposing a limitation upon the rights of the owner or an affirmative obligation upon the owner appropriate to the purpose of preserving the historical, architectural, archaeological, or cultural aspects of real property, or for such other historic preservation purpose as may qualify as a charitable contribution under the Internal Revenue Code; and

(3) Holder shall mean anyone acquiring a conservation or preservation easement by purchase, exchange, gift, or devise and having the right to enforce it by its terms, which may be:

(a) Any governmental body empowered to hold an interest in real property in this state under the laws of this state or the United States having among its purposes the subject matter of the easement;

(b) In the case of a conservation easement, any charitable corporation or trust whose purposes include retaining or protecting the natural, scenic, or open condition of real property, assuring its availability for agricultural, horticultural, forest, recreational, wildlife habitat, or open space use or protecting air quality, water quality, or other natural resources; or

(c) In the case of a preservation easement, any charitable corporation or trust whose purposes include the preservation of the historical, architectural, archaeological, or cultural aspects of real property.

Source:Laws 1981, LB 173, § 1; Laws 1995, LB 574, § 61.


76-2,112. Easement; creation; approval by governing body; when required.

(1) A conservation or preservation easement shall be an interest in real property, created by an instrument in which the purpose for the easement is clearly stated. The instrument shall be filed, duly recorded, and indexed in the office of the register of deeds of the county in which the real property subject to the conservation or preservation easement is located.

(2) No conveyance of a conservation or preservation easement shall be effective until accepted by the holder.

(3) In order to minimize conflicts with land-use planning, each conservation or preservation easement shall be approved by the appropriate governing body. Such approving body shall first refer the proposed acquisition to and receive comments from the local planning commission with jurisdiction over such property, which shall within sixty days of the referral provide such comments regarding the conformity of the proposed acquisition to comprehensive planning for the area. If such comments are not received within sixty days, the proposed acquisition shall be deemed approved by the local planning commission. If the property is located partially or entirely within the boundaries or zoning jurisdiction of a city or village, approval of the governing body of such city or village shall be required. If such property is located entirely outside the boundaries and zoning jurisdiction of any city or village, approval of the county board shall be required. If the property is located in the Niobrara scenic river corridor as defined in section 72-2006 and is not incorporated within the boundaries of a city or village, the Niobrara Council approval rather than city, village, or county approval shall be required. Approval of a proposed acquisition may be denied upon a finding by the appropriate governing body that the acquisition is not in the public interest when the easement is inconsistent with (a) a comprehensive plan for the area which had been officially adopted and was in force at the time of the conveyance, (b) any national, state, regional, or local program furthering conservation or preservation, or (c) any known proposal by a governmental body for use of the land.

(4) Notwithstanding the provisions of subsection (3) of this section, the state, or any state agency or political subdivision other than a city, village, or county, may accept an easement after first referring the proposed acquisition to and receiving comments from the local planning commission with jurisdiction over the property, which shall within sixty days of the referral provide such comments regarding the conformity of the proposed acquisition to comprehensive planning for the area. If such comments are not received within sixty days, the proposed acquisition shall be deemed approved by the local planning commission.

Source:Laws 1981, LB 173, § 2; Laws 2000, LB 1234, § 12.    


76-2,113. Easement; release or transfer.

(1) A conservation or preservation easement may be released by the holder of the easement to the owner of the servient estate, except that such release shall be approved by the governing body which approved the easement, or if the holder is the state, a state agency, or political subdivision other than a city, village, or county, the release shall be approved by the state or such state agency or political subdivision. The release of an easement may be approved upon a finding by such body that the easement no longer substantially achieves the conservation or preservation purpose for which it was created.

(2) A conservation or preservation easement may be assigned or transferred to any governmental body or charitable corporation or trust authorized to secure such easement pursuant to sections 76-2,111 to 76-2,118.

Source:Laws 1981, LB 173, § 3.


76-2,114. Easement; judicial modification or termination.

Unless a conservation or preservation easement is otherwise modified or terminated according to the terms of the easement or the provisions of sections 76-2,111 to 76-2,118, the owner of the subject real property or the holder of the easement may petition the district court in which the greater part of the servient estate is located for modification or termination of the easement. The court may modify or terminate the easement pursuant to this section only if the petitioner establishes that it is no longer in the public interest to hold the easement or that the easement no longer substantially achieves the conservation or preservation purpose for which it was created. No comparative economic test shall be used to determine whether the public interest or the conservation or preservation purpose of the easement is still being served. No modification shall be permitted which is in excess of that reasonably necessary to remedy the deficiency of the easement.

Source:Laws 1981, LB 173, § 4.


76-2,115. Easement; enforceability; duration.

No duly recorded conservation or preservation easement shall be unenforceable for lack of privity of estate or of contract, for lack of benefit to a dominant estate, or on account of the easement being assignable. A conservation or preservation easement shall run with the land and shall be perpetual unless otherwise stated in the instrument creating it. A conservation or preservation easement may be enforced by proceedings at law or in equity.

Source:Laws 1981, LB 173, § 5.


76-2,116. Property subject to easement; how assessed.

Real property subject to a conservation or preservation easement shall be assessed with due regard to the restricted uses to which the property may be devoted. The conservation or preservation easement in the hands of the holder shall be subject to assessment, taxation, or exemption from taxation in accordance with general laws applicable to assessment and taxation of interests in real property.

Source:Laws 1981, LB 173, § 6.


76-2,117. Sections; effect on other rights and powers.

(1) The provisions of sections 76-2,111 to 76-2,118 do not render invalid or unenforceable any otherwise valid restriction, easement, covenant, or condition whether created before or after the enactment of sections 76-2,111 to 76-2,118.

(2) Nothing in sections 76-2,111 to 76-2,118 shall diminish the powers granted in any other law to acquire by purchase, gift, grant, eminent domain, or otherwise and to use interests in real property for public purposes.

(3) If property subject to a conservation or preservation easement is condemned for public use, that part of the easement which conflicts with the condemnation shall terminate as of the time of the condemnation. If the easement was obtained by gift or devise the owner shall be entitled to such compensation for the taking as if the property had not been subject to the easement and if the easement was obtained by purchase or exchange, the holder shall be entitled to just compensation for the taking of the easement.

(4) An entity having the power of eminent domain may, through agreement with the owner of the servient estate and the holder of the conservation or preservation easement, acquire an easement over the land for the purpose of providing utility services.

Source:Laws 1981, LB 173, § 7.


76-2,118. Act, how cited.

Sections 76-2,111 to 76-2,118 shall be known and may be cited as the Conservation and Preservation Easements Act.

Source:Laws 1981, LB 173, § 8.


76-2,119. Notation on deed; required.

A permanent notation shall be made on the deed of any property where a solid waste disposal area or solid waste processing facility is sited. The notation shall indicate the name and address of the agency where records of operations of the area or facility are maintained and where copies of such records may be obtained.

Source:Laws 1991, LB 813, § 15.


Cross References

76-2,120. Written disclosure statement required, when; contents; delivery; liability; noncompliance; effect; State Real Estate Commission; rules and regulations.

(1) For purposes of this section:

(a) Ground lease coupled with improvements shall mean a lease for a parcel of land on which one to four residential dwelling units have been constructed;

(b) Purchaser shall mean a person who acquires, attempts to acquire, or succeeds to an interest in land;

(c) Residential real property shall mean real property which is being used primarily for residential purposes on which no fewer than one or more than four dwelling units are located; and

(d) Seller shall mean an owner of real property who sells or attempts to sell, including lease with option to purchase, residential real property, whether an individual, partnership, limited liability company, corporation, or trust. A sale of a residential dwelling which is subject to a ground lease coupled with improvements shall be a sale of residential real property for purposes of this subdivision.

(2) Each seller of residential real property located in Nebraska shall provide the purchaser with a written disclosure statement of the real property's condition. The disclosure statement shall be executed by the seller. The requirements of this section shall also apply to a sale of improvements which contain residential real property when the improvements are sold coupled with a ground lease and to any lease with the option to purchase residential real property.

(3) The disclosure statement shall include language at the beginning which states:

(a) That the statement is being completed and delivered in accordance with Nebraska law;

(b) That Nebraska law requires the seller to complete the statement;

(c) The real property's address and legal description;

(d) That the statement is a disclosure of the real property's condition as known by the seller on the date of disclosure;

(e) That the statement is not a warranty of any kind by the seller or any agent representing a principal in the transaction;

(f) That the statement should not be accepted as a substitute for any inspection or warranty that the purchaser may wish to obtain;

(g) That even though the information provided in the statement is not a warranty, the purchaser may rely on the information in deciding whether and on what terms to purchase the real property;

(h) That any agent representing a principal in the transaction may provide a copy of the statement to any other person in connection with any actual or possible sale of the real property; and

(i) That the information provided in the statement is the representation of the seller and not the representation of any agent and that the information is not intended to be part of any contract between the seller and purchaser.

(4) In addition to the requirements of subsection (3) of this section, the disclosure statement shall disclose the condition of the real property and any improvements on the real property, including:

(a) The condition of all appliances that are included in the sale and whether the appliances are in working condition;

(b) The condition of the electrical system;

(c) The condition of the heating and cooling systems;

(d) The condition of the water system;

(e) The condition of the sewer system;

(f) The condition of all improvements on the real property and any defects that materially affect the value of the real property or improvements;

(g) Any hazardous conditions, including substances, materials, and products on the real property which may be an environmental hazard;

(h) Any title conditions which affect the real property, including encroachments, easements, and zoning restrictions;

(i) The utility connections and whether they are public, private, or community;

(j) The existence of any private transfer fee obligation as defined in section 76-3107; and

(k) Information relating to compliance with the requirements for a carbon monoxide alarm as provided in sections 76-604 and 76-605.

(5) The disclosure statement shall be completed to the best of the seller's belief and knowledge as of the date the disclosure statement is completed and signed by the seller. If any information required by the disclosure statement is unknown to the seller, the seller may indicate that fact on the disclosure statement and the seller shall be in compliance with this section. On or before the effective date of any contract which binds the purchaser to purchase the real property, the seller shall update the information on the disclosure statement whenever the seller has knowledge that information on the disclosure statement is no longer accurate.

(6) This section shall not apply to a transfer:

(a) Pursuant to a court order, a foreclosure sale, or a sale by a trustee under a power of sale in a deed of trust;

(b) By a trustee in bankruptcy;

(c) To a mortgagee by a mortgagor or successor in interest or to a beneficiary of a deed of trust by a trustor or successor in interest;

(d) By a mortgagee, a beneficiary under a deed of trust, or a seller under a land contract who has acquired the real property at a sale conducted pursuant to a power of sale under a deed of trust, at a sale pursuant to a court-ordered foreclosure, or by a deed in lieu of foreclosure;

(e) By a fiduciary in the course of the administration of a decedent's estate, guardianship, conservatorship, or trust except when the fiduciary is also the occupant or was an occupant of one of the dwelling units being sold;

(f) From one or more co-owners to one or more other co-owners;

(g) Made to a spouse or to a person or persons in the lineal line of consanguinity of one or more of the transferors;

(h) Between spouses resulting from a decree of dissolution of marriage or a decree of legal separation or from a property settlement agreement incidental to such a decree;

(i) Pursuant to a merger, consolidation, sale, or transfer of assets of a corporation pursuant to a plan of merger or consolidation filed with the Secretary of State;

(j) To or from any governmental entity;

(k) Of newly constructed residential real property which has never been occupied; or

(l) From a third-party relocation company if the third-party relocation company has provided the prospective purchaser a disclosure statement from the most immediate seller unless the most immediate seller meets one of the exceptions in this section. If a disclosure statement is required, and if a third-party relocation company fails to supply a disclosure statement from its most immediate seller on or before the effective date of any contract which binds the purchaser to purchase the real property, the third-party relocation company shall be liable to the prospective purchaser to the same extent as a seller under this section.

(7) The disclosure statement and any update to the statement shall be delivered by the seller or the agent of the seller to the purchaser or the agent of the purchaser on or before the effective date of any contract which binds the purchaser to purchase the real property, and the purchaser shall acknowledge in writing receipt of the disclosure statement or update.

(8) The seller shall not be liable under this section for any error, inaccuracy, or omission of any information in a disclosure statement if the error, inaccuracy, or omission was not within the personal knowledge of the seller.

(9) A person representing a principal in the transaction shall not be liable under this section for any error, inaccuracy, or omission of any information in a disclosure statement unless that person has knowledge of the error, inaccuracy, or omission on the part of the seller.

(10) A person licensed as a salesperson or broker pursuant to the Nebraska Real Estate License Act shall not be required to verify the accuracy or completeness of any disclosure statement prepared pursuant to this section, and the only obligation of a buyer's agent pursuant to this section is to assure that a copy of the statement is delivered to the buyer on or before the effective date of any purchase agreement which binds the buyer to purchase the property subject to the disclosure statement. This subsection does not limit the duties and obligations provided in section 76-2418 or in subsection (9) of this section with respect to a buyer's agent.

(11) A transfer of an interest in real property subject to this section may not be invalidated solely because of the failure of any person to comply with this section.

(12) If a conveyance of real property is not made in compliance with this section, the purchaser shall have a cause of action against the seller and may recover the actual damages, court costs, and reasonable attorney's fees. The cause of action created by this section shall be in addition to any other cause of action that the purchaser may have. Any action to recover damages under the cause of action shall be commenced within one year after the purchaser takes possession or the conveyance of the real property, whichever occurs first.

(13) The State Real Estate Commission shall adopt and promulgate rules and regulations to carry out this section. By January 1, 2017, the commission shall adopt and promulgate rules and regulations to amend the disclosure statement prepared pursuant to this section to be in compliance with the requirements of subdivision (4)(k) of this section.

Source:Laws 1994, LB 642, § 1; Laws 2002, LB 863, § 1;    Laws 2011, LB26, § 13;    Laws 2015, LB34, § 8.    


Cross References

Annotations

76-2,121. Real estate closing agents; terms, defined.

For purposes of sections 76-2,121 to 76-2,123:

(1) Federally insured financial institution shall mean an institution in which the monetary deposits are insured by the Federal Deposit Insurance Corporation or National Credit Union Administration;

(2) Good funds shall mean: (a) Lawful money of the United States; (b) wired funds when unconditionally held by the real estate closing agent or employee; (c) cashier's checks, certified checks, bank money orders, or teller's checks issued by a federally insured financial institution and unconditionally held by the real estate closing agent or employee; or (d) United States treasury checks, federal reserve bank checks, federal home loan bank checks, State of Nebraska warrants, and warrants of a city of the metropolitan or primary class;

(3) Real estate closing agent shall mean a person who collects and disburses funds on behalf of another in closing a real estate transaction but shall not include a seller or buyer closing a real estate transaction on his or her own behalf or a lender closing a real estate loan transaction; and

(4) Regulating entity shall mean the:

(a) Department of Insurance;

(b) Supreme Court;

(c) State Real Estate Commission;

(d) Department of Banking and Finance;

(e) Federal Deposit Insurance Corporation;

(f) Federal Office of Thrift Supervision;

(g) Federal Farm Credit Administration; or

(h) National Credit Union Administration.

Source:Laws 1994, LB 1275, § 1; Laws 1999, LB 248, § 1.    


76-2,122. Real estate closing agents; requirements; exemptions; enforcement; violation; penalty.

(1) To act as a real estate closing agent, a person shall be (a) licensed or regulated by one or more regulating entities or (b) employed by a person or entity regulated by one or more regulating entities, unless employing such person to act as a real estate closing agent is otherwise prohibited by statute, rule, or regulation.

(2) A person acting as a real estate closing agent shall:

(a) Have received good funds which are available for disbursement at the time of closing a real estate transaction, except that up to five hundred dollars need not be available for disbursement from good funds;

(b) Except as provided in section 81-885.21, deposit all funds received on behalf of another person in a trust account controlled by the real estate closing agent in a federally insured financial institution, except that up to five hundred dollars may be paid by one party directly to another party without first being deposited in a trust account controlled by the real estate closing agent; and

(c) Except as provided in section 81-885.21, disburse closing funds only from the real estate closing agent's trust account in a federally insured financial institution in the form of good funds or in the form of a check drawn from the real estate closing agent's trust account.

(3) The following real estate transactions are exempt from this section:

(a) Transactions with a political subdivision which is exercising its power of condemnation or eminent domain;

(b) Lease or rental transactions; and

(c) Real estate transactions in which the closing occurs within one business day following another real estate closing and in which one party is a principal to both transactions, but only to the extent that the funds disbursed in the subsequent transaction are drawn upon funds properly received by a real estate closing agent in the prior transaction which were deposited in that real estate closing agent's trust account in a federally insured financial institution or as otherwise provided in section 81-885.21.

(4) The Attorney General or any county attorney may act to enjoin the performance of real estate closings which violate this section.

(5) A person acting as a real estate closing agent in violation of this section shall be guilty of a Class V misdemeanor.

Source:Laws 1994, LB 1275, § 2; Laws 1995, LB 774, § 1.


Cross References

76-2,123. Real estate closing agents; regulating entities; rules and regulations.

Each state regulating entity may adopt and promulgate rules and regulations and issue such orders as are necessary or desirable to carry out section 76-2,122. Each regulating entity may inspect, examine, and audit the books and records of real estate closing agents under its jurisdiction who conduct real estate closings. The regulating entity may require reimbursement from the real estate closing agent for the expenses of such inspection, examination, or audit.

Source:Laws 1994, LB 1275, § 3; Laws 2003, LB 217, § 46.    


76-2,124. Water resources update notice; Department of Natural Resources; powers and duties.

(1) Any person transferring ownership of real property not inside the corporate limits of a municipality shall complete and provide to the transferee, at or before the closing of the transfer, a water resources update notice acknowledging (a) whether any surface water rights issued pursuant to Chapter 46, article 2, and in the name of any party other than an irrigation district, public power and irrigation district, or mutual irrigation company are attached to the real property, ownership of which is being transferred, and (b) whether there are any water wells, except water wells used solely for domestic purposes and constructed prior to September 9, 1993, on the real property, ownership of which is being transferred. If the water resources update notice discloses the existence of such surface water rights or such water wells, the transferee shall complete the water resources update notice and shall file it with the Department of Natural Resources within sixty days after recording the deed or other instrument by which the transfer of ownership of real property is made. The department shall use such notice to update ownership of surface water rights and water well registrations as required by sections 46-230 and 46-602.

(2) The department shall prescribe the form and content of the water resources update notice and shall make such forms available to title insurance companies and other persons as deemed appropriate by the department. The requirement that a water resources update notice be filed with the department or the failure to file such a notice does not affect the recording, legality, or sufficiency of a deed or other instrument evidencing the transfer of ownership of real property.

(3) The department shall not collect a fee for the filing of the water resources update notices.

Source:Laws 2001, LB 667, § 27;    Laws 2002, LB 458, § 9.    


76-2,125. Master form instrument; use.

A real estate mortgage or trust deed may be recorded and constructive notice of the same and the contents thereof given in the following manner:

(1) An instrument which is a master form instrument for mortgages or trust deeds containing a form or forms of covenants, conditions, obligations, powers, and other clauses of a mortgage or trust deed may be recorded in the office of the register of deeds of any county. The register of deeds of such county, upon the request of any person and the payment of the required fees, shall record such instrument. Every such instrument shall be entitled on the face thereof as a "Master form recorded by ...... (name of person causing the instrument to be recorded)". Such instrument need not be acknowledged to be recorded;

(2) When a master form instrument is recorded, the register of deeds shall index such instrument under the name of the person causing it to be recorded in the manner provided for miscellaneous instruments relating to real estate;

(3) Thereafter any of the provisions of the master form instrument may be incorporated by reference in any mortgage or trust deed for real estate situated within this state, if such reference in the mortgage or trust deed states that the master form instrument was recorded in the county in which the mortgage or trust deed is offered for record, the date when and the book and page or pages or recording number where such master form instrument was recorded, and that a copy of such master form instrument was furnished to the person executing the mortgage or trust deed. The recording of any mortgage or trust deed which has incorporated by reference any of the provisions of a master form instrument recorded as provided in this section shall have like effect as if such provisions of the master form so incorporated by reference had been fully set forth in the mortgage or trust deed; and

(4) Whenever a mortgage or trust deed is presented for recording on which is set forth matter purporting to be a copy or reproduction of the master form instrument or of part thereof, identified by its title as provided in subdivision (1) of this section and stating the date when it was recorded and the book and page or pages or recording number where it was recorded preceded by the words "do not record" or "not to be recorded" and plainly separated from the matter to be recorded as a part of the mortgage or trust deed in such manner that it will not appear upon a photographic reproduction of any page containing any part of the mortgage or trust deed, such matter shall not be recorded by the register of deeds to whom the instrument is presented for recording. In such case the register of deeds shall record only the mortgage or trust deed apart from such matter and shall not be liable for so doing, any other provisions of law to the contrary notwithstanding.

Source:Laws 2001, LB 84, § 1.    


76-2,126. Certain conveyances; filing of death certificate and attached cover sheet with register of deeds.

If a conveyance of real estate was pursuant to (1) a transfer on death deed due to the death of the transferor or the death of a surviving joint tenant of the transferor, (2) a joint tenancy deed due to the death of a joint tenant, or (3) the expiration of a life estate, then a death certificate shall be filed with the register of deeds to document the transfer of title to the beneficiary of the transfer on death deed, to the surviving joint tenant or joint tenants, or to the holder of an interest in real estate which receives that interest as a result of the death of a life tenant. If the conveyance of real estate was pursuant to a transfer on death deed, a cover sheet indicating the title of the document, the previously recorded document data, and the grantor, surviving grantee, and legal description of the property being transferred shall be attached to the death certificate and recorded.

Source:Laws 2012, LB536, § 31;    Laws 2013, LB345, § 1;    Laws 2014, LB780, § 2.    


76-301. Occupant or claimant; eviction by holder of better title; reimbursement for improvements and taxes paid.

Any person claiming title to real estate, whether in actual possession or not, for which he can show a plain and connected title, in law or equity, derived from the records of some public office, from the United States, or from this state, or anyone who has derived title from any such person by devise, descent, deed, contract or bond, shall not be evicted or turned out of possession of such real estate. His claim or title shall not be set aside or canceled by any court in any proceedings brought or commenced by any person setting up and proving an adverse and better title or claim to such real estate, until he shall be fully paid the value of all lasting and valuable improvements made upon such real estate by him or by those under whom he claims, and also for all taxes and assessments paid upon the real estate by him and the persons under whom he claims, with interest thereon at the same rate of interest as provided by law for delinquent taxes, and for all sums of money paid by him, or those under whom he claims, to redeem such real estate from any sale or sales for nonpayment of taxes previous to receiving actual notice by the commencement of suit on such adverse title or claim by which such eviction or cancellation may be had, unless the occupant or claimant shall refuse to pay the person so setting up and proving an adverse and better title the value of such real estate without improvements made thereon as aforesaid, upon the demand of the successful claimant as hereinafter provided.

Source:Laws 1883, c. 59, § 1, p. 249; R.S.1913, § 6255; C.S.1922, § 5665; C.S.1929, § 76-301; R.S.1943, § 76-301.


Annotations

76-302. Occupant or claimant, defined; taxes paid, how proved.

Any person in possession of or claiming any real estate under a certificate of entry or under the homestead or preemption laws of the United States, as well as the persons enumerated in section 76-301, shall be considered as having sufficient title to demand the value of improvements, and to demand the amount of all taxes and assessments paid by such claimant or those under whom he claims, under the provisions of such section. The tax certificates and the tax receipts of the county treasurer, for the purposes of this section and section 76-301, shall be conclusive evidence of the assessments, levy and payment of the taxes on such real estate, for the purpose of ascertaining the amount of the taxes paid by such occupant or claimant.

Source:Laws 1883, c. 59, § 2, p. 250; R.S.1913, § 6256; C.S.1922, § 5666; C.S.1929, § 76-302; R.S.1943, § 76-302.


Annotations

76-303. Appraisers; oath; compensation.

The court, rendering judgment or decree in any case provided for by sections 76-301 to 76-311 against any occupant or claimant, shall, at the request of such occupant or claimant, issue an order to the sheriff of the county wherein such real estate is situated commanding him or her to summon three disinterested freeholders of such county, whose duty it shall be to appraise such real estate and the improvements aforesaid at their cash value as provided in section 76-304. The appraisers shall take and subscribe an oath to impartially appraise the real estate and improvements, which oath shall be filed with the clerk of the court issuing such order. The order thus issued to the sheriff shall be accompanied by written instructions from the court to the appraisers, necessary to carry out the provisions of sections 76-301 and 76-302. Such appraisers shall be allowed the same fees as jurors are allowed in the district court and mileage as provided in section 81-1176 for state employees.

Source:Laws 1883, c. 59, § 3, p. 251; R.S.1913, § 6257; C.S.1922, § 5667; C.S.1929, § 76-303; R.S.1943, § 76-303; Laws 1981, LB 204, § 146.


Annotations

76-304. Appraisers; powers and duties.

The appraisers shall jointly proceed at once, after service of said order on them, to view the real estate in question, and to assess the value of all lasting and valuable improvements on the same, made previous to the party's receiving actual notice as aforesaid of the adverse claim. They shall also assess the net annual value of the rents and profits, which the occupant or claimant has received after having received notice of the successful claimant's title by service of process, and they shall deduct the amount thereof from the estimated value of the improvements aforesaid. They shall also assess the value of the land in question at the time such occupant went into possession thereof, or such claimant commenced to pay the tax thereon as the case may be.

Source:Laws 1883, c. 59, § 4, p. 251; R.S.1913, § 6258; C.S.1922, § 5668; C.S.1929, § 76-304; R.S.1943, § 76-304.


Annotations

76-305. Appraisers; report; objections; reappraisal.

The appraisers shall make report in writing of their appraisement and deposit the same in a sealed envelope with the clerk of such court, within the time required by the court, and if either party shall think himself aggrieved by such appraisement he may file objections thereto at the term to which the same is returned, if returned in term time, ten days before such term adjourns, and if such report is made in vacation, or if made in term time, less than ten days before such term adjourns, then such objections may be filed on or before the second day of the term next ensuing. Upon the hearing of such objections, if the court is of the opinion that injustice has been done by such appraisement, it shall be set aside and a new appraisement ordered. New appraisers shall thereupon be summoned and like proceedings had as provided in sections 76-303 and 76-304.

Source:Laws 1883, c. 59, § 5, p. 252; R.S.1913, § 6259; C.S.1922, § 5669; C.S.1929, § 76-305; R.S.1943, § 76-305.


Annotations

76-306. Decree of eviction; judgment for amount due claimant.

If no objections are made to the appraisement, or if made and overruled, the court shall proceed without pleadings to ascertain the amount of taxes paid by the occupant or claimant, with interest as hereinbefore provided for. If the appraisement reported to the court shall show a sum in favor of the occupant or claimant against whom such decree or judgment is rendered, the amount of taxes and interest ascertained by the court shall be added thereto, and decree entered therein in favor of such unsuccessful occupant or claimant against the said person proving a better title. Such decree shall constitute and be a lien upon such real estate, but in case the appraisement shall show a balance due the person proving a better title, the amount of such balance shall be deducted from the amount found due the occupant or unsuccessful claimant for taxes and interest, and decree be entered for the difference in favor of such occupant or claimant. If upon the whole finding there shall appear a balance due the successful claimant, judgment shall be rendered in his favor therefor.

Source:Laws 1883, c. 59, § 6, p. 252; R.S.1913, § 6260; C.S.1922, § 5670; C.S.1929, § 76-306; R.S.1943, § 76-306.


76-307. Decree of eviction; rights of better title holder.

If upon the final hearing there shall be found a balance in favor of the occupant or unsuccessful claimant, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements, as shown by the appraisement, and tender a general warranty deed for the real estate in question to such occupant or claimant or he may pay into court the balance so found due such occupant or claimant within such time as the court shall allow in its final decree.

Source:Laws 1883, c. 59, § 7, p. 253; R.S.1913, § 6261; C.S.1922, § 5671; C.S.1929, § 76-307; R.S.1943, § 76-307.


Annotations

76-308. Writ of possession; issuance; when.

If the successful claimant shall elect to pay and does pay to the occupant or claimant the balance found due him on the final hearing, within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant, or decree shall be entered against such unsuccessful claimant, as the case may require.

Source:Laws 1883, c. 59, § 8, p. 253; R.S.1913, § 6262; C.S.1922, § 5672; C.S.1929, § 76-308; R.S.1943, § 76-308.


76-309. Election by better title holder to accept value of unimproved land; neglect or refusal to pay; effect.

If the successful claimant shall elect to receive the value of the real estate without improvements, to be paid by the occupant or claimants, within such a time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, and the occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then the successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimant, or decree shall be entered in his favor as the case shall require.

Source:Laws 1883, c. 59, § 9, p. 253; R.S.1913, § 6263; C.S.1922, § 5673; C.S.1929, § 76-309; R.S.1943, § 76-309.


76-310. Failure of better title holder to make election; right of occupant.

The occupant or claimant shall in no case be evicted from possession, or deprived of his right in the premises, except as provided in sections 76-308 and 76-309, and in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant, within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his payment into court the value of the real estate without improvements. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant.

Source:Laws 1883, c. 59, § 10, p. 254; R.S.1913, § 6264; C.S.1922, § 5674; C.S.1929, § 76-310; R.S.1943, § 76-310.


Annotations

76-311. Demand for reimbursement, when allowed; scope of sections.

Sections 76-301 to 76-311 shall apply to all suits wherein any of the claims or rights herein set forth shall be demanded, and such demand for improvements or taxes may be made upon the overruling by the court of a motion for a new trial, or in case the suit is one in equity, then such demand may be made within three days after the entry of decree; Provided, however, all of the provisions of said sections shall be limited and restricted to those cases where the title to the real estate in controversy is derived from some source other than that which comes from such tax titles, tax certificates, tax receipts, or the payment of taxes by any person claiming any interest in or title to such real estate, by reason of such tax deeds, tax titles, tax certificates or tax receipts.

Source:Laws 1883, c. 59, § 11, p. 254; R.S.1913, § 6265; C.S.1922, § 5675; C.S.1929, § 76-311; R.S.1943, § 76-311.


Annotations

76-401. Escheats; when title vests in state.

Upon the failure of heirs, the title shall vest at once in the state, without an inquest or other proceedings in the nature of office found.

Source:Laws 1875, § 2, p. 52; R.S.1913, § 6272; C.S.1922, § 5686; C.S.1929, § 76-501; R.S.1943, § 76-401.


Annotations

76-402. Aliens and foreign corporations; real estate; ownership prohibited.

Aliens and corporations not incorporated under the laws of the State of Nebraska are prohibited from acquiring title to or taking or holding any land, or real estate, or any leasehold interest extending for a period for more than five years or any other greater interest less than fee in any land, or real estate in this state by descent, devise, purchase or otherwise, except as provided in sections 76-403 to 76-405.

Source:Laws 1889, c. 58, § 1, p. 483; R.S.1913, § 6273; Laws 1921, c. 142, § 1, p. 608; C.S.1922, § 5687; C.S.1929, § 76-502; Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-402.


Annotations

76-403. Widow or heirs of aliens; right to land.

The widow and heirs of aliens, who have prior to March 16, 1889, acquired lands in this state under the laws thereof, may hold such lands by devise or descent for a period of ten years and no longer, and if at the end of such time such lands, so acquired, have not been sold to a bona fide purchaser for value, such lands or other interest therein shall revert and escheat to the State of Nebraska. It shall be the duty of the county attorney in the counties where such lands are situated to enforce forfeitures of all such lands or other interests therein as provided by section 76-408.

Source:Laws 1889, c. 58, § 1, p. 483; R.S.1913, § 6273; Laws 1921, c. 142, § 1, p. 608; C.S.1922, § 5687; C.S.1929, § 76-502; Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-403.


Cross References

Annotations

76-404. Oil and gas leases permitted.

Corporations incorporated under the laws of the United States of America, or under the laws of any state of the United States of America, or any foreign corporation or any alien, doing business in this state, may acquire, own, hold, or operate leases for oil, gas, or other hydrocarbon substances, for a period as long as ten years and as long thereafter as oil, gas, or other hydrocarbon substances shall or can be produced in commercial quantities.

Source:Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-404; Laws 1955, c. 286, § 1, p. 895; Laws 1982, LB 571, § 1.


76-405. Land acquired by devise or descent; sale within five years required.

Any resident alien may acquire title to lands in this state by devise or descent only, provided such alien shall be required to sell and convey said real property within five years from the date of acquiring it, and if he shall fail to dispose of it to a bona fide purchaser for value within that time, it shall revert and escheat to the State of Nebraska.

Source:Laws 1921, c. 142, § 1, p. 608; C.S.1922, § 5687; C.S.1929, § 76-502; Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-405.


Annotations

76-406. Corporations; board of directors; election of aliens; restrictions.

No corporation organized under the laws of this state and no corporation organized under the laws of any other state or country, doing business in this state, which was organized to hold or is holding real estate, except as provided in sections 76-404 and 76-412 to 76-414, shall elect aliens as members of its board of directors or board of trustees in number sufficient to constitute a majority of such board, nor elect aliens as executive officers or managers nor have a majority of its capital stock owned by aliens.

Source:Laws 1921, c. 142, § 1, p. 608; C.S.1922, § 5687; C.S.1929, § 76-502; Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-406; Laws 1955, c. 286, § 2, p. 896.


76-407. Corporations; violations; penalties.

Any such corporation violating the provisions of section 76-406 shall be construed and held to be an alien and within the provisions of sections 76-401 to 76-415 applicable to alien persons. Any such domestic corporation violating the provisions of section 76-406 shall forfeit its charter and be dissolved. Any such foreign corporation violating the provisions of said section shall forfeit its right to do business in the State of Nebraska.

Source:Laws 1921, c. 142, § 1, p. 608; C.S.1922, § 5687; C.S.1929, § 76-502; Laws 1939, c. 97, § 1, p. 417; C.S.Supp.,1941, § 76-502; R.S.1943, § 76-407.


76-408. Forfeiture of land; duty of county attorney to enforce; procedure; costs.

Whenever any such lands shall revert and escheat to the State of Nebraska, as provided in sections 76-403, 76-405, and 76-411, it shall be the duty of the county attorney of the county in which such lands are situated, to proceed against such alien in the district court of the county where the land is situated for the purpose of having such forfeiture declared. The nonresident alien defendants shall be served in the manner provided for the service of a summons in a civil action, and the court shall have power to hear and determine the questions presented in such cases and to declare such lands escheated to the state. When such forfeiture shall be declared by the district court, it shall be the duty of the clerk of the court to notify the Governor of the state that the title to such lands is vested in the state by the decree of the court. The clerk of the court shall present the Director of Administrative Services with the bill of costs incurred by the county in prosecuting such case, who shall issue a warrant to the clerk of the court on the state treasury to repay the county for such costs incurred. The heirs or persons who would have been entitled to such lands shall be paid by the State of Nebraska the full value thereof, as ascertained by appraisement upon the oaths of the judge, treasurer, and clerk of the county where such lands lie, and such lands shall become subject to the law, and shall be disposed of as other lands belonging to the state; Provided, the expense of the appraisement shall be deducted from the appraised value of the land.

Source:Laws 1889, c. 58, § 2, p. 484; Laws 1911, c. 100, § 1, p. 365; R.S.1913, § 6274; C.S.1922, § 5688; C.S.1929, § 76-503; R.S.1943, § 76-408; Laws 1983, LB 447, § 86.


Annotations

76-409. Forfeiture of land; sale at request of heirs; title of purchaser.

At any time before the proceedings for forfeiture provided for in section 76-408 by the county attorney shall be instituted, or at any time before final decree in any such proceedings, the widow, heirs and devisees, or either of them, of deceased nonresident aliens, may, by answer in said proceedings, or by independent action in the district court of any county in which any such lands are situated, instead of the forfeiture, have the lands sold as in partition, except that it shall not be necessary for the referee or referees to report that the land cannot be divided, but the same shall be ordered sold by the court at once, and the proceeds, after the payment of costs as in other cases of partition, shall be divided according to the respective interests of the parties the same as if there had been no escheat. The purchaser at any such sale shall acquire the same title to the lands purchased which he would have acquired if the nonresident alien had been a resident or citizen. In case there is only one party in interest, he may maintain an ex parte proceeding and have the land sold in the same manner, and the purchaser shall receive the same title as if there were several parties in interest, and after the payment of costs the proceeds of the sale shall be paid to the sole party in interest.

Source:Laws 1911, c. 100, § 1, p. 365; R.S.1913, § 6274; C.S.1922, § 5688; C.S.1929, § 76-503; R.S.1943, § 76-409.


Cross References

Annotations

76-410. Owners of land in 1889; sale during lifetime required.

Any alien who owned land in this state on March 16, 1889, may dispose of the same during his life to bona fide purchasers for value, and may take security for the purchase money with the same rights as to securities as a citizen of the United States except as hereinafter limited by section 76-411.

Source:Laws 1889, c. 58, § 3, p. 485; R.S.1913, § 6275; Laws 1921, c. 142, § 2, p. 609; C.S.1922, § 5689; C.S.1929, § 76-504; R.S.1943, § 76-410.


76-411. Liens upon real estate; acquisition of such real estate; duty to sell within ten years.

The statutes of Nebraska shall not prevent the holders, whether aliens or corporations not organized under the laws of the State of Nebraska, of liens upon real estate or any interest therein, from holding or taking valid title to the real estate subject to such liens, nor shall it prevent any such alien or corporation from enforcing any lien or judgment for any debt or liability, nor from becoming a purchaser at any sale made for the purpose of collecting or enforcing the collection of such debt or judgment; Provided, however, all lands so acquired shall be sold within ten years after the title thereto shall be perfected in such alien or foreign corporation, and in default of such sale within such time, such real estate shall revert and escheat to the State of Nebraska.

Source:Laws 1889, c. 58, § 4, p. 485; R.S.1913, § 6276; Laws 1919, c. 136, § 1, p. 313; Laws 1921, c. 142, § 3, p. 609; C.S.1922, § 5690; C.S.1929, § 76-505; Laws 1931, c. 128, § 1, p. 361; C.S.Supp.,1941, § 76-505; R.S.1943, § 76-411.


Annotations

76-412. Sections; not applicable to real estate of railroads, public utilities, and common carriers.

The provisions of sections 76-402, 76-406, 76-407 and 76-411 shall not apply to the real estate necessary for the construction and operation of railroads, public utilities and common carriers.

Source:Laws 1889, c. 58, § 4, p. 485; R.S.1913, § 6276; Laws 1919, c. 136, § 1, p. 313; Laws 1921, c. 142, § 3, p. 609; C.S.1922, § 5690; C.S.1929, § 76-505; Laws 1931, c. 128, § 1, p. 361; C.S.Supp.,1941, § 76-505; R.S.1943, § 76-412.


76-413. Sections; not applicable to manufacturing or industrial establishments or establishments for storage, sale, and distribution of petroleum products.

Any alien or foreign corporation may purchase, acquire, and hold title to or be a lessor or lessee of as much real estate as shall be necessary for the purpose of (1) erecting thereon manufacturing or industrial establishments, and in addition thereto such real estate as may be required for facilities incidental to such establishments, or (2) erecting and maintaining establishments primarily operated for the storage, sale, and distribution of petroleum products, commonly known as filling stations or bulk stations.

Source:Laws 1889, c. 58, § 4, p. 485; R.S.1913, § 6276; Laws 1919, c. 136, § 1, p. 313; Laws 1921, c. 142, § 3, p. 609; C.S.1922, § 5690; C.S.1929, § 76-505; Laws 1931, c. 128, § 1, p. 361; C.S.Supp.,1941, § 76-505; R.S.1943, § 76-413; Laws 1945, c. 184, § 1, p. 573; Laws 1953, c. 264, § 1, p. 875.


76-414. Sections; not applicable to real estate within cities and villages or within three miles of cities and villages; not applicable to manufacturing or industrial establishments.

The provisions of sections 76-402 to 76-413 shall not apply to any real estate lying within the corporate limits of cities and villages, or within three miles thereof, nor to any manufacturing or industrial establishment referred to in section 76-413.

Source:Laws 1889, c. 58, § 4, p. 485; R.S.1913, § 6276; Laws 1919, c. 136, § 1, p. 313; Laws 1921, c. 142, § 3, p. 609; C.S.1922, § 5690; C.S.1929, § 76-505; Laws 1931, c. 128, § 1, p. 361; C.S.Supp.,1941, § 76-505; R.S.1943, § 76-414; Laws 1953, c. 264, § 2, p. 876; Laws 1957, c. 318, § 1, p. 1135.


Annotations

76-415. Sections; not applicable to real estate acquired by aliens before 1889.

The provisions of sections 76-402 to 76-413 shall not apply to any real estate acquired by any alien prior to March 16, 1889, as long as such real property shall remain the property of such alien.

Source:Laws 1921, c. 142, § 3, p. 609; C.S.1922, § 5690; C.S.1929, § 76-505; Laws 1931, c. 128, § 1, p. 361; C.S.Supp.,1941, § 76-505; R.S.1943, § 76-415; Laws 1957, c. 318, § 2, p. 1136.


76-501. Repealed. Laws 1985, LB 47, § 32.

76-502. Abstracting; district or county judges ineligible.

No district judge or county judge within this state shall engage in the business of abstracting nor be interested directly or indirectly in any company or corporation which is engaged in the business of abstracting while holding office. Any certification of an abstract of title by a judge in violation of this section shall be void.

Source:Laws 1935, c. 148, § 1, p. 551; C.S.Supp.,1941, § 76-601; R.S.1943, § 76-502; Laws 1972, LB 1032, § 269; Laws 1985, LB 47, § 2.


76-503. Repealed. Laws 1973, LB 517, § 2.

76-504. Abstracting; counties over 5,000 population; county officers ineligible; exception.

No county official or deputy, clerk, or assistant to such official, except the county attorney and deputy county attorney, in counties having a population of over five thousand shall engage in the business of compiling abstracts of title to real estate in the State of Nebraska while holding such office, and any certification of an abstract of title by any such person in violation of this section shall be void.

Any registered abstracter holding any such office on August 30, 1981, shall continue to be eligible to engage in the business of compiling abstracts of title so long as he or she continues to hold such office.

Source:Laws 1933, c. 125, § 1, p. 499; Laws 1935, c. 148, § 1, p. 551; C.S.Supp.,1941, § 76-601; R.S.1943, § 76-504; Laws 1972, LB 1032, § 270; Laws 1981, LB 409, § 6; Laws 1985, LB 47, § 3.


76-505. Violations; penalty.

A violation of section 76-502 or 76-504 shall be a Class III misdemeanor.

Source:Laws 1907, c. 98, § 1, p. 347; Laws 1911, c. 99, § 1, p. 364; R.S.1913, § 6277; C.S.1922, § 5691; C.S.1929, § 76-601; Laws 1933, c. 125, § 1, p. 499; Laws 1935, c. 148, § 1, p. 551; C.S.Supp.,1941, § 76-601; R.S.1943, § 76-505; Laws 1985, LB 47, § 4.


76-506. Repealed. Laws 1985, LB 47, § 32.

76-507. Repealed. Laws 1985, LB 47, § 32.

76-508. Repealed. Laws 1985, LB 47, § 32.

76-509. Transferred to section 76-538.

76-510. Transferred to section 76-537.

76-511. Transferred to section 76-540.

76-512. Transferred to section 76-541.

76-513. Transferred to section 76-549.

76-514. Transferred to section 76-553.

76-515. Transferred to section 76-550.

76-516. Repealed. Laws 1981, LB 545, § 52.

76-517. Repealed. Laws 1985, LB 47, § 32.

76-518. Transferred to section 76-539.

76-519. Transferred to section 76-542.

76-520. Repealed. Laws 1985, LB 47, § 32.

76-521. Transferred to section 76-546.

76-522. Transferred to section 76-545.

76-523. Transferred to section 76-547.

76-524. Transferred to section 76-548.

76-525. Transferred to section 76-555.

76-526. Transferred to section 76-551.

76-527. Transferred to section 76-558.

76-528. Transferred to section 76-554.

76-529. Transferred to section 76-556.

76-530. Transferred to section 76-557.

76-531. Repealed. Laws 1985, LB 47, § 32.

76-532. Transferred to section 76-544.

76-533. Repealed. Laws 1985, LB 47, § 32.

76-534. Repealed. Laws 1985, LB 47, § 32.

76-535. Act, how cited.

Sections 76-535 to 76-558 shall be known and may be cited as the Abstracters Act.

Source:Laws 1985, LB 47, § 5.


Annotations

76-536. Legislative intent.

It is the intent of the Legislature to safeguard the welfare and property of citizens of this state and to insure that abstracters serving the public meet minimum standards of proficiency and competency.

Source:Laws 1985, LB 47, § 6.


Annotations

76-537. Terms, defined.

As used in the Abstracters Act, unless the context otherwise requires:

(1) Abstract of title means a compilation in orderly arrangement of the materials and facts of record affecting the title to real property, issued under a certificate certifying to the matters contained in such compilation;

(2) Board means the Abstracters Board of Examiners;

(3) Business of abstracting means the making, compiling, and selling of abstracts of title or any part thereof or preparing written reports of title to real property;

(4) Business entity means a partnership, limited liability company, corporation, or other organizational form developed to conduct business;

(5) Certificate of authority means the authorization to engage in the business of abstracting in a county in the State of Nebraska granted to an individual or business entity;

(6) Certificate of registration means the authorization to prepare abstracts of title to real property in any county within the State of Nebraska which is granted to an individual under section 76-543;

(7) Duplicate certificate of registration means a second or subsequent certificate of registration issued in this state for an abstracter who (a) holds an operative certificate of registration and (b) is employed by more than one holder of a certificate of authority;

(8) Inactive abstracter means an abstracter whose certificate of registration is not affiliated with an individual or business entity engaged in the business of abstracting and holding a certificate of authority;

(9) Professional development means a course of educational instruction, including correspondence courses, designed to maintain and improve the ability of registered abstracters to provide services to the public;

(10) Registered abstracter means an individual, registered under the Abstracters Act, holding an operative certificate of registration who for a fee or other valuable consideration compiles or certifies abstracts of title or any part thereof to real property in any county within this state or who prepares reports of title; and

(11) Report of title means any type of summary of facts of record affecting the title to real property which does not purport to constitute an opinion as to the state of the title and which is prepared by a person other than an attorney licensed to practice law in the State of Nebraska. Report of title does not include a title insurance commitment or policy or information or opinions given by a register of deeds in response to inquiries from the public.

Source:Laws 1965, c. 453, § 2, p. 1436; R.S.1943, (1981), § 76-510; Laws 1985, LB 47, § 7; Laws 1993, LB 121, § 476; Laws 2002, LB 1071, § 1.    


Annotations

76-538. Compliance with act.

Any individual or business entity engaged in the business of abstracting in Nebraska shall comply with the Abstracters Act.

Source:Laws 1965, c. 453, § 1, p. 1436; R.S.1943, (1981), § 76-509; Laws 1985, LB 47, § 8; Laws 1993, LB 121, § 477; Laws 2002, LB 1071, § 2.    


Annotations

76-539. Business of abstracting; requirements.

(1) An individual or business entity shall not engage in the business of abstracting in this state unless a certificate of authority has been issued to such individual or business entity.

(2) Every individual or business entity engaged in the business of abstracting shall be or have in its employ a registered abstracter. Only a registered abstracter may certify abstracts or otherwise attest to the accuracy of abstracts or prepare reports of title. An inactive abstracter shall not, for a fee or other valuable consideration, compile or certify abstracts of title or any part thereof to real property in any county within this state, prepare reports of title, or in any way engage in the business of abstracting.

Source:Laws 1965, c. 453, § 10, p. 1440; Laws 1969, c. 615, § 9, p. 2498; R.S.1943, (1981), § 76-518; Laws 1985, LB 47, § 9; Laws 2002, LB 1071, § 3.    


Annotations

76-540. Abstracters Board of Examiners; membership.

There is hereby created an Abstracters Board of Examiners of five members to be appointed by the Governor to carry out the purposes of and enforce the Abstracters Act. The board shall include three members who shall at all times be active registered abstracters who have engaged in the business of abstracting for at least five years, one member who shall be a lawyer experienced in the area of real estate law, and one member who shall be representative of the public.

No more than two members of the board shall be appointed from the same county, at least one member shall be appointed from a county having as its largest city a city of the first class, and at least one member shall be appointed from a county having as its largest city a city of the second class. No member of the board shall be employed by the same employer as any other member of the board.

Each member of the board shall serve for a term of five years and until a successor is appointed and qualified, except that members of the board currently serving on March 26, 1985, shall continue to serve the terms for which they were appointed. The first attorney member of the board whose term expires after March 26, 1985, shall be succeeded by the representative of the public.

Vacancies created by the death, resignation, or other disability of a board member resulting in the inability to carry out his or her duties shall be filled by appointment by the Governor and such successor shall possess the same qualifications as the member replaced and such member shall, upon qualification, serve the unexpired term of the member whom he or she succeeds. No member of the board shall be appointed to succeed himself or herself.

Source:Laws 1965, c. 453, § 3, p. 1437; Laws 1973, LB 330, § 1; R.S.1943, (1981), § 76-511; Laws 1985, LB 47, § 10.


Annotations

76-541. Board; officers; powers; seal; rules and regulations; conduct of business.

The board shall organize by election of a chairperson and vice-chairperson. The board shall have the power to compel the attendance of witnesses, and the chairperson and vice-chairperson shall have the power to administer oaths. The board shall employ a director who shall keep a record of all proceedings, transactions, communications, and official acts of the board, be custodian of all records, and perform such other duties as the board may require.

The board shall adopt a seal, which may be either an engraved or ink stamp seal with the words Abstracters Board of Examiners, State of Nebraska, and such other device as the board may desire included, by which it shall authenticate the acts of the board. Copies of all records and papers in the office of the board, certified by the signature of the director and the seal of the board, shall be received in evidence in all cases equally and with like effect as the originals.

The board may adopt and promulgate such rules and regulations as it shall deem necessary for the proper administration of its powers and duties and the carrying out of the Abstracters Act. Such rules and regulations may provide that, except for hearings on the revocation of certificates issued by the board, the business of the board may be conducted while in session as a body or by correspondence. Such correspondence shall be directed to the director to be incorporated into the records of the board.

The action of the majority of the members of the board shall be deemed the action of the board.

Source:Laws 1965, c. 453, § 4, p. 1438; Laws 1971, LB 653, § 8; R.S.1943, (1981), § 76-512; Laws 1985, LB 47, § 11.


Annotations

76-542. Registration; application; fee; qualifications; rules and regulations.

Any individual desiring to become a registered abstracter shall file an application for registration with the board. Such applicant shall have reached the age of majority, shall not have been convicted of a felony, and shall have at least one year of verified land title-related experience satisfactory to the board. Each applicant for registration shall take the written examination prescribed by section 76-543.

Such application shall be in a form prepared by the board and shall contain the applicant's social security number and such information as may be necessary to assist the board in determining the qualification of the applicant for registration. Each such application shall be accompanied by (1) an application fee of not less than twenty-five dollars or more than one hundred dollars and (2) an examination fee of not less than twenty-five dollars or more than one hundred dollars. The board shall establish such fees based on the administrative costs of the board.

Upon receipt of such application the board shall notify the applicant by mail whether the application has been accepted. If the application has not been accepted, the examination fee shall be returned to the applicant. If the application has been accepted, the applicant shall be notified of the time and place of the next scheduled examination.

The board shall adopt and promulgate rules and regulations necessary to establish the experience standards and administer the examination required for registered abstracters.

Source:Laws 1965, c. 453, § 11, p. 1440; Laws 1969, c. 615, § 10, p. 2498; Laws 1973, LB 330, § 3; Laws 1981, LB 409, § 8; R.S.1943, (1981), § 76-519; Laws 1985, LB 47, § 12; Laws 1997, LB 752, § 202; Laws 2002, LB 1071, § 4.    


Annotations

76-543. Examination; certificate of registration; issuance; reapplication procedure.

The board shall prescribe a written examination to determine the proficiency of the applicant. If the applicant passes the examination and meets the other requirements of section 76-542, the board shall issue a certificate of registration designating him or her to be a registered abstracter. If the abstracter has more than one place of employment, the abstracter shall obtain a duplicate certificate of registration for each additional place of employment. A certificate shall be prominently displayed at each place of employment of such abstracter. If an applicant fails the examination, he or she may reapply for registration by remitting the examination fee. The board shall give the examination at least twice a year.

Source:Laws 1985, LB 47, § 13; Laws 2002, LB 1071, § 5.    


Annotations

76-544. Professional development requirements; rules and regulations.

Every two years a registered abstracter shall complete and certify to the board that he or she has successfully completed three hours of board-approved professional development credits. The board shall adopt and promulgate rules and regulations necessary for the effective delivery and approval of all programs of professional development required.

Source:Laws 1981, LB 409, § 2; R.S.1943, (1981), § 76-532; Laws 1985, LB 47, § 14; Laws 1990, LB 1153, § 57.


Annotations

76-545. Business of abstracting; requirements; certificate of authority; authority; fee.

Any individual or business entity desiring to engage in the business of abstracting in this state shall make application to the board for a certificate of authority. Such application shall be in a form prepared by the board and shall contain such information as may be necessary to assist the board in determining whether the applicant has complied with the Abstracters Act. Such application shall be accompanied by an application fee of not less than twenty-five dollars or more than two hundred dollars. The board shall establish such fee based on the administrative costs of the board. The applicant shall furnish proof that such applicant is or has employed a registered abstracter and shall provide the name and address of a resident agent for service of process under the act. When this section has been complied with, the board shall issue a certificate of authority in such form as it may prescribe, attesting to the same, and such certificate shall be prominently displayed in the place of business of the applicant.

Source:Laws 1965, c. 453, § 14, p. 1442; Laws 1969, c. 615, § 11, p. 2499; R.S.1943, (1981), § 76-522; Laws 1985, LB 47, § 15; Laws 2002, LB 1071, § 6;    Laws 2010, LB1051, § 1.    


Annotations

76-546. Temporary certificate of registration; when issued; fee; expiration.

The board may, upon application to it by (1) any individual succeeding to the ownership of any abstract business by any means other than by purchase or (2) any individual who, by reason of the incapacity of any registered abstracter owner of any abstract business, is required to assume the operation of such business, grant to such individual, without examination, a temporary certificate of registration. The application shall include the applicant's social security number. Such temporary certificate shall be issued only after the applicant provides proof of land title-related experience sufficient to meet the standards established by the board. The fee for such temporary certificate of registration shall be not less than twenty-five or more than one hundred dollars. The board shall establish such fee based on the administrative costs of the board. Such certificate shall expire six months after its date or upon the expiration of sixty days after the next regularly scheduled examination which could be taken by the applicant under the rules and regulations of the board, whichever period is the longer. The board shall notify such applicant by mail of the time and place of such examination.

Source:Laws 1965, c. 453, § 13, p. 1441; Laws 1981, LB 409, § 9; R.S.1943, (1981), § 76-521; Laws 1985, LB 47, § 16; Laws 1997, LB 752, § 203.


Annotations

76-547. Certificates; term; renewal; requirements; fees.

(1) All certificates of authority issued pursuant to section 76-545 shall expire on April 1 of each even-numbered year irrespective of when issued. Such certificates shall be renewed, as provided in this section, for a two-year period upon payment of a renewal fee of not less than fifty dollars or more than four hundred dollars. The board shall establish such fee based on the administrative costs of the board.

(2) All certificates of registration, including duplicate certificates of registration, issued pursuant to section 76-543 shall expire on April 1 of each even-numbered year irrespective of when issued. Such certificates shall be renewed, as provided in this section, for a two-year period upon payment of a renewal fee of not less than twenty dollars or more than two hundred dollars. The board shall establish such fee based on the administrative costs of the board. The board shall not renew the certificate of registration or duplicate certificate of registration for any registered abstracter who has failed to complete the professional development requirements set forth in section 76-544, unless the registered abstracter has shown good cause why he or she was unable to comply with such requirements. If the board determines that good cause was shown for not completing the professional development requirements, the board shall permit the registered abstracter to make up all outstanding hours of professional development within six months of the renewal of such certificates. If the hours are not completed in six months, such certificates shall be revoked.

(3) Thirty to sixty days prior to the expiration date of the certificates, the board shall cause a notice of expiration and application for renewal, including a statement for the fee for each certificate, to be mailed to each of the holders of such certificates. The notice and application shall be in a form prepared by the board.

Source:Laws 1965, c. 453, § 15, p. 1442; Laws 1973, LB 330, § 4; R.S.1943, (1981), § 76-523; Laws 1985, LB 47, § 17; Laws 2002, LB 1071, § 7;    Laws 2005, LB 640, § 1;    Laws 2010, LB1051, § 2.    


Annotations

76-548. Certificates; failure to renew; notice; late renewal; fee.

If a holder of a certificate of authority or certificate of registration fails to apply for renewal and to pay the fee provided, the board shall send by registered or certified mail to such holder a notice that the certificate or certificates have expired and are no longer valid authority for such individual or business entity to engage in the business of abstracting. Such notice shall be mailed not more than thirty days following the certificate expiration date. Any holder who fails to apply for renewal or pay the renewal fees prescribed in section 76-547 may file a late renewal application and shall pay, in addition to the renewal fee, ten dollars for each month or fraction thereof that the application is late beginning with April 1, except that such application shall be filed before July 1 of the year of expiration.

Source:Laws 1965, c. 453, § 16, p. 1443; Laws 1973, LB 330, § 5; R.S.1943, (1981), § 76-524; Laws 1985, LB 47, § 18.


Annotations

76-549. Abstracters Board of Examiners Cash Fund; created; investment; board members and director; compensation.

(1) All fees collected pursuant to the Abstracters Act shall be deposited in the state treasury to be credited to the Abstracters Board of Examiners Cash Fund which is hereby created. All actual and necessary expenses of the board shall be paid from such fund.

(2) No member of the board shall receive a salary. Each member of the board shall receive as compensation for each day or part thereof of actual service while attending meetings or otherwise engaged upon the business of the board fifty dollars and expenses incurred in the performance of official duties. The director shall be paid a salary to be determined by the board.

(3) Transfers may be made from the Abstracters Board of Examiners Cash Fund to the General Fund at the direction of the Legislature. Any money in the Abstracters Board of Examiners Cash Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1965, c. 453, § 5, p. 1438; Laws 1969, c. 615, § 6, p. 2497; Laws 1971, LB 25, § 1; Laws 1973, LB 330, § 2; Laws 1981, LB 204, § 147; R.S.1943, (1981), § 76-513; Laws 1985, LB 47, § 19; Laws 2009, First Spec. Sess., LB3, § 52.    


Cross References

Annotations

76-550. Register and roster of applicants and abstracters.

The board shall keep a register of the name of each applicant for certification, with his or her place of business and such other information as may be deemed appropriate, including a notation of the action taken by the board thereon, the date upon which the certificate of registration or certificate of authority is issued, and the date of renewal of such certificates. The board shall maintain other records, registers, and files as may be necessary for the proper administration of its duties pursuant to the Abstracters Act. A roster showing the names and places of business of abstracters holding an operative certificate of registration shall be prepared by the director and maintained and updated at least annually on the board's web site in a printable format.

Source:Laws 1965, c. 453, § 7, p. 1439; Laws 1981, LB 409, § 7; R.S.1943, (1981), § 76-515; Laws 1985, LB 47, § 20; Laws 2010, LB1051, § 3;    Laws 2015, LB269, § 1.    


Annotations

76-551. Disciplinary actions; grounds; unfair practices.

The board shall have the power (1) to revoke a certificate of registration or certificate of authority, (2) to suspend a certificate of registration or certificate of authority for a specific period not to exceed a year, (3) to censure a registered abstracter or holder of a certificate of authority, and (4) to issue a letter of reprimand to a registered abstracter or holder of a certificate of authority.

Such disciplinary actions may be invoked after a hearing as provided in section 76-552 for a violation of the Abstracters Act, including unfair practices, upon the conviction of the holder of a certificate of a felony, or if the board finds a holder to be guilty of habitual carelessness or of fraudulent practices in the conduct of the business of abstracting.

Unfair practices which are a violation of the Abstracters Act shall include:

(a) Failure to disclose an agency relationship to or interest in any title insurance business, law firm, real estate or insurance business, or any other business or enterprise to a client in the event that the holder of the certificate of registration or the holder of the certificate of authority would receive a fee directly or indirectly from such a relationship or interest during a transaction involving real estate in which the holder is retained to provide abstracting services for such client; and

(b) Paying or allowing a rebate of fees for abstracting services, which unfair practice specifically includes rendering a statement or bill to be passed on to third parties which does not reflect the true amount charged for such services or charging an amount from which a rebate is to be paid.

The board shall also have the power after a hearing as provided in section 76-552 to revoke or suspend a certificate of authority for failure to have employed a registered abstracter or for otherwise violating the Abstracters Act.

Source:Laws 1965, c. 453, § 18, p. 1443; Laws 1969, c. 615, § 12, p. 2499; Laws 1976, LB 310, § 1; R.S.1943, (1981), § 76-526; Laws 1985, LB 47, § 21.


Annotations

76-552. Disciplinary actions; procedure; appeal.

A verified complaint may be filed with the board charging a registered abstracter or a holder of a certificate of authority with a violation of the Abstracters Act. The board on its own motion may also file such a complaint. If a complaint is filed, the board shall immediately notify the abstracter or holder of such certificate of the complaint. The notice shall be in writing and be sent by registered or certified mail, return receipt requested. The notice shall contain a statement of the charges and a copy of the complaint. The notice shall state the time and place of the hearing which shall be not less than twenty nor more than forty days from the date of service of such complaint. The abstracter or holder of such certificate shall be entitled to counsel at any hearing. The board shall cause a transcript of any testimony taken to be made by a reporter or stenographer.

The decision of the board may be appealed, and the appeal shall be in accordance with the Administrative Procedure Act.

Source:Laws 1985, LB 47, § 22; Laws 1988, LB 352, § 147.


Cross References

Annotations

76-553. Attorney General; representation of board.

The Attorney General shall render to the Abstracters Board of Examiners opinions on all questions of law relating to the interpretation of the Abstracters Act or arising in its administration and shall act as attorney for the board in all actions and proceedings brought by or against it pursuant to the Abstracters Act.

Source:Laws 1965, c. 453, § 6, p. 1439; Laws 1967, c. 481, § 1, p. 1492; Laws 1969, c. 615, § 7, p. 2497; R.S.1943, (1981), § 76-514; Laws 1985, LB 47, § 23.


Annotations

76-554. Clerical assistants; not subject to act.

Nothing in the Abstracters Act shall be construed as prohibiting any individual or business entity holding a valid certificate of authority from employing such clerical and stenographic assistants as may be necessary in the conduct of its business who are not registered under the Abstracters Act.

Source:Laws 1965, c. 453, § 20, p. 1446; Laws 1973, LB 330, § 6; R.S.1943, (1981), § 76-528; Laws 1985, LB 47, § 24.


Annotations

76-555. Public records; access; other rights.

Holders of certificates of authority and their employees in the conduct of the business of abstracting shall have access to the public records in any office of any city, county, or the state, shall be permitted to make memoranda, notations, or copies of such records, and shall be permitted to occupy reasonable space with equipment for that purpose, subject to the reasonable regulation of the custodian of such public records and during the business hours of such office, in order to enable such certificate holders to make and prepare abstracts and to compile, post, copy, and maintain their books, records, and indices.

Source:Laws 1965, c. 453, § 17, p. 1443; R.S.1943, (1981), § 76-525; Laws 1985, LB 47, § 25.


Annotations

76-556. Abstracters; liability.

A registered abstracter shall show each link in the chain of title, and failure to do so shall render him or her liable to any person injured by such omission. In adding extensions to an old abstract, a registered abstracter shall not be deemed to certify to or verify accuracy of entries prior to the first date given in the certificate of extension. When a registered abstracter relies upon the numerical index alone to refer him or her to all entries upon the records affecting the title to property, such reliance shall be at his or her peril. A registered abstracter shall be liable for omission of notice of encumbrance in an abstract.

Source:Laws 1969, c. 615, § 13, p. 2501; R.S.1943, (1981), § 76-529; Laws 1985, LB 47, § 26.


Annotations

76-557. Abstracts; effect of Title Standards.

In the compilation or examination of an abstract of title to real estate, it shall not be considered negligence for a registered abstracter or an attorney to follow the Title Standards promulgated by the Nebraska State Bar Association.

Source:Laws 1973, LB 517, § 1; R.S.1943, (1981), § 76-530; Laws 1985, LB 47, § 27.


Annotations

76-558. Violations; penalty; effect.

Any individual or business entity engaged in the business of abstracting in this state without having complied with the Abstracters Act shall be guilty of a Class III misdemeanor. Violation of the Abstracters Act shall in no way be construed to preclude the liability of a holder of a certificate of authority, a registered abstracter, any person holding himself or herself out to be a registered abstracter or a holder of a certificate of authority, or any person illegally engaged in the business of abstracting in the State of Nebraska.

Source:Laws 1965, c. 453, § 19, p. 1445; Laws 1977, LB 39, § 208; R.S.1943, (1981), § 76-527; Laws 1985, LB 47, § 28.


Annotations

76-601. Act, how cited.

Sections 76-601 to 76-607 shall be known and may be cited as the Carbon Monoxide Safety Act.

Source:Laws 2015, LB34, § 1.    


76-602. Terms, defined.

For purposes of the Carbon Monoxide Safety Act:

(1) Carbon monoxide alarm means a device that detects carbon monoxide and that:

(a) Produces a distinct, audible alarm;

(b) Is listed by a nationally recognized, independent product-safety testing and certification laboratory to conform to the standards for carbon monoxide alarms issued by such laboratory as determined by the State Fire Marshal;

(c)(i) Is battery-powered;

(ii) Plugs into a dwelling's electrical outlet and has a battery backup;

(iii) Is wired into a dwelling's electrical system and has a battery backup; or

(iv) Is connected to an electrical system via an electrical panel; and

(d) May be combined with a smoke detecting device if the combined device complies with applicable law regarding both smoke detecting devices and carbon monoxide alarms and if the carbon monoxide alarm is distinct and descriptively annunciated from a smoke detecting alarm;

(2) Dwelling unit means a single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation;

(3) Fuel means coal, kerosene, oil, fuel gases, or other petroleum products or hydrocarbon products such as wood that emit carbon monoxide as a byproduct of combustion;

(4) Installed means that a carbon monoxide alarm is installed in a dwelling unit in accordance with the National Fire Protection Association Standard 720 as such standard existed on January 1, 2015, and in accordance with the instructions for installation from the manufacturer, in one of the following ways:

(a) If the alarm is battery-powered, attached to the wall or ceiling of the dwelling unit;

(b) Directly plugged into an electrical outlet without a switch other than a circuit breaker; or

(c) Wired directly into the dwelling's electrical system;

(5) Multifamily dwelling means any improved real property used or intended to be used as a residence and that contains more than one dwelling unit. Multifamily dwelling includes a condominium or cooperative;

(6) Operational means working and in service in accordance with the manufacturer's instructions; and

(7) Single-family dwelling means any improved real property used or intended to be used as a residence and that contains one dwelling unit.

Source:Laws 2015, LB34, § 2.    


76-603. Carbon monoxide alarm; installation required.

Any multifamily dwelling or single-family dwelling constructed on or after January 1, 2017, that has a fuel-fired heater or appliance, a fireplace, or an attached garage shall have a carbon monoxide alarm installed (1) on each habitable floor of each dwelling unit in a multifamily dwelling and on each habitable floor in a single-family dwelling or (2) in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling is located.

Source:Laws 2015, LB34, § 3.    


76-604. Seller of single-family dwelling; duties; interior alterations requiring permit; owner; duties.

(1) The seller of a single-family dwelling that is offered for sale or transfer on or after January 1, 2017, and that has a fuel-fired heater or appliance, a fireplace, or an attached garage shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling is located.

(2) If the owner of a single-family dwelling that has a fuel-fired heater or appliance, a fireplace, or an attached garage makes any interior alteration, repair, fuel-fired appliance replacement, or addition on or after January 1, 2017, where a permit is required, the owner shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling where the alteration, repair, replacement, or addition occurs or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling is located. This subsection applies only to interior alterations. This subsection does not apply to exterior alterations which require a building permit.

(3) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm.

Source:Laws 2015, LB34, § 4.    


76-605. Seller of multifamily dwelling; duties; interior alterations requiring permit; owner; duties; prohibited acts.

(1) The seller of a dwelling unit of an existing multifamily dwelling shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling unit or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling unit is located when the dwelling unit is offered for sale or transfer on or after January 1, 2017, if the dwelling unit has a fuel-fired heater or appliance, a fireplace, or an attached garage.

(2) The owner of a dwelling unit of a multifamily dwelling shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling unit or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling unit is located if the dwelling unit has a fuel-fired heater or appliance, a fireplace, or an attached garage and if the owner, on or after January 1, 2017, makes any of the following where a permit is required: Any interior alteration, repair, fuel-fired appliance replacement, or addition.

(3) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm.

Source:Laws 2015, LB34, § 5.    


76-606. Owner of certain rental property; duties; tenant; duties; prohibited acts.

(1) The owner of a single-family dwelling or a dwelling unit in a multifamily dwelling that is used for rental purposes shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling or dwelling unit or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling or dwelling unit is located if the dwelling or dwelling unit has a fuel-fired heater or appliance, a fireplace, or an attached garage and if the owner, on or after January 1, 2017, makes any of the following where a permit is required: Any interior alteration, repair, fuel-fired appliance replacement, or addition.

(2) The owner of an existing single-family dwelling or existing dwelling unit in a multifamily dwelling that is used for rental purposes and that has a change in tenant occupancy on or after January 1, 2017, shall ensure that an operational carbon monoxide alarm is installed on each habitable floor of the dwelling or dwelling unit or in a location specified in any building code adopted by the state or by the political subdivision in which the dwelling or dwelling unit is located.

(3)(a) The owner of any rental property specified in subsection (1) or (2) of this section shall:

(i) Prior to the commencement of a new tenant occupancy, replace any carbon monoxide alarm that was stolen, removed, found missing, or found not operational after the previous occupancy;

(ii) Ensure that any batteries necessary to make the carbon monoxide alarm operational are provided to the tenant at the time the tenant takes residence in the dwelling unit;

(iii) Replace any carbon monoxide alarm if notified by a tenant as specified in subdivision (4)(b) of this section that any carbon monoxide alarm was stolen, removed, found missing, or found not operational during the tenant's occupancy; and

(iv) Fix any deficiency in a carbon monoxide alarm if notified by a tenant as specified in subdivision (4)(c) of this section.

(b) Except as provided in subdivision (a) of this subsection, the owner of a single-family dwelling or dwelling unit in a multifamily dwelling that is used for rental purposes is not responsible for the maintenance, repair, or replacement of a carbon monoxide alarm or the care and replacement of batteries for the carbon monoxide alarm.

(4) The tenant of any rental property specified in subsection (1) or (2) of this section shall:

(a) Keep, test, and maintain all carbon monoxide alarms in good repair;

(b) Notify the owner of the single-family dwelling or dwelling unit of a multifamily dwelling, or the owner's authorized agent, if any carbon monoxide alarm is stolen, removed, found missing, or found not operational during the tenant's occupancy of the single-family dwelling or dwelling unit in the multifamily dwelling; and

(c) Notify the owner of the single-family dwelling or dwelling unit of a multifamily dwelling, or the owner's authorized agent, of any deficiency in any carbon monoxide alarm that the tenant cannot correct.

(5) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm.

Source:Laws 2015, LB34, § 6.    


76-607. Act; how construed.

Nothing in the Carbon Monoxide Safety Act shall be construed to limit a city, village, or county from adopting or enforcing any requirements for the installation and maintenance of carbon monoxide alarms that are more stringent than the requirements set forth in the act.

Source:Laws 2015, LB34, § 7.    


76-701. Terms, defined.

For purposes of sections 76-701 to 76-726:

(1) Condemner means any legal entity that by law has been granted the right to exercise the power of eminent domain and includes the state and any governmental or political subdivision thereof;

(2) Condemnee means any person, partnership, limited liability company, corporation, or association owning or having an encumbrance on any interest in property that is sought to be acquired by a condemner or in possession of or occupying any such property;

(3) Property means any such interest in real or personal property as the condemner is empowered by law to acquire for public use; and

(4) County judge means the county judge of the county where condemnation proceedings provided by such sections are had.

Source:Laws 1951, c. 101, § 1, p. 452; Laws 1993, LB 121, § 478; Laws 2006, LB 924, § 1.    


Annotations

76-702. Condemner; enter upon land; inventory; furnish to condemnee.

After negotiations have failed, any condemner, or his representative, upon proper identification and after informing the condemnee of the contemplated action is authorized to enter upon any land for the purpose of examining and surveying same in contemplation of bringing or during the pendency of condemnation proceedings under sections 76-701 to 76-724; Provided, when an inventory is made of the damage to personal property by reason of examining or surveying the land by the condemner, or his representatives, a copy of the inventory shall be delivered to the condemnee.

Source:Laws 1951, c. 101, § 2, p. 452.


Annotations

76-703. Damages; ascertainment; procedure.

Damages to be paid by the condemner for any property including parts of or easements across rights-of-way of a public utility or a railroad taken through the exercise of the power of eminent domain shall be ascertained and determined as provided in sections 76-704 to 76-724, except that if it is sought to condemn the property, or such part thereof as will result in a decrease in the territory or volume of service, of a public utility engaged in the rendition of existing service, such damages shall be ascertained and determined as provided in sections 19-701 to 19-707 and 70-650 or the Municipal Natural Gas System Condemnation Act, when applicable.

Source:Laws 1951, c. 101, § 3, p. 453; Laws 1961, c. 181, § 11, p. 543; Laws 2002, LB 384, § 31.    


Cross References

76-704. Petition of condemner.

If any condemnee shall fail to agree with the condemner with respect to the acquisition of property sought by the condemner, a petition to condemn the property may be filed by the condemner in the county court of the county where the property or some part thereof is situated.

Source:Laws 1951, c. 101, § 4, p. 453.


Annotations

76-704.01. Petition of condemner; contents.

A petition filed pursuant to section 76-704, shall include:

(1) A statement of the authority for the acquisition;

(2) The nature of and necessity and purpose for which the land will be used;

(3) The title, right, or interest in the property to be acquired;

(4) The quantity needed to fulfill the public purpose for which taken;

(5) Reasons for selecting the particular location or route;

(6) Evidence of attempts to negotiate in good faith with the property owner; and

(7) If approval of any other agency is required the condemner should set forth the approval in writing of such agency.

Source:Laws 1978, LB 917, § 6.


76-705. Acquisition of property; damages; petition of condemnee.

If any condemner shall have taken or damaged property for public use without instituting condemnation proceedings, the condemnee, in addition to any other available remedy, may file a petition with the county judge of the county where the property or some part thereof is situated to have the damages ascertained and determined.

Source:Laws 1951, c. 101, § 5, p. 453.


Annotations

76-706. Appointment of appraisers; qualifications; notice to condemnee.

Upon filing of a petition under either section 76-704 or 76-705, the county judge or clerk magistrate, within three days by order entered of record, shall appoint three disinterested freeholders of the county, not interested in a like question, to serve as appraisers. One appraiser so appointed shall be a credentialed real property appraiser, except that if the county judge finds that no credentialed real property appraiser is a disinterested freeholder of the county, this requirement shall not apply. The county judge or clerk magistrate shall direct the sheriff to summon the appraisers so selected to convene at the office of the county judge at a time specified in the summons for the purpose of qualifying as appraisers and thereafter proceed to appraise the property sought to be condemned and to ascertain and determine the damages sustained by the condemnee. Notice of intention to acquire the property and of the time and place of meeting of the board of appraisers to have the damages assessed shall be served upon the condemnee at least ten days prior to the meeting of the board of appraisers. Service of such notice shall be made in the manner provided for service of a summons in a civil action.

Source:Laws 1951, c. 101, § 6, p. 453; Laws 1976, LB 775, § 1; Laws 1983, LB 447, § 87; Laws 1987, LB 601, § 3; Laws 1990, LB 1153, § 58; Laws 1991, LB 203, § 4; Laws 1994, LB 1107, § 4; Laws 2006, LB 778, § 8.    


Annotations

76-707. Appraisers; disqualifications; vacancies; appointment.

Upon convening of the appraisers, the county judge shall interrogate the appraisers as to their qualifications and may excuse any appraiser found by the county judge to be disqualified to serve. The county judge may fill any vacancies arising through disqualification, inability to attend, or otherwise.

Source:Laws 1951, c. 101, § 7, p. 454.


76-708. Appraisers; oath.

The appraisers shall, before entering on their duties, take and subscribe an oath that they will support the Constitutions of the United States and of the State of Nebraska, and will faithfully and impartially discharge their duties as required by law.

Source:Laws 1951, c. 101, § 8, p. 454.


76-709. Appraisers; duties.

It shall be the duty of the appraisers to carefully inspect and view the property taken or sought to be taken, and also any other property of the condemnee damaged thereby. The appraisers shall hear any party interested therein in reference to the amount of damages when they are so inspecting and viewing the property.

Source:Laws 1951, c. 101, § 9, p. 454.


76-710. Appraisers; assessment of damages; additional damages; copy of report to condemnee; failure to transmit; effect.

After the inspection, view, and hearing provided for in section 76-709 have been completed, the appraisers shall assess the damages that the condemnee has sustained or will sustain by the appropriation of the property to the use of the condemner and make and file a report thereof in writing with the court. In assessing such damages in cases in which the appropriation consists of taking an easement, the assessment of damages shall include damages for fences and crops destroyed or damaged by reason of the original construction of the improvement. Damage to fencing and crops occurring after the original construction and resulting from the operation or maintenance of the improvement shall not be included in such assessment but shall be determined by agreement of the parties and paid to the owner or lessee by the condemner or its successors and assigns at the time such fencing or crops are damaged. Upon failure of the parties to agree, such damages may be determined in the same manner as provided under sections 76-701 to 76-724. A copy of the appraisers' report shall be transmitted to the condemnee.

The transmission shall be made by the court within ten days of the return of appraisers and shall be by personal delivery or the sending by ordinary mail of such copy to the condemnee, to the attorney representing the condemnee at the inspection, view, and hearing, or to the officer or representative of a corporate condemnee so present. When title or interest in a single parcel of land is held by several condemnees the transmission of such copy to any one of such owners of interest shall be considered compliance with such requirement. The court shall record in the files of the proceedings the date, the person, his or her interest, and the manner of such transmission. Failure of transmission shall not be jurisdictional but shall extend the condemnee's time of appeal to twenty days after such transmittal is finally made.

Source:Laws 1951, c. 101, § 10, p. 454; Laws 1969, c. 616, § 1, p. 2502; Laws 1969, c. 617, § 1, p. 2503; Laws 1987, LB 601, § 4.


Annotations

76-710.01. Damages; effect of reimbursement by federal government; severance damages; other considerations.

Where any condemner shall have taken or attempts to take property for public use, the damages for taking such property shall be determined according to the laws of this state irrespective of whether the condemner may be reimbursed for a part of such damage from the federal government and such damages shall include all compensable damages suffered by the condemnee including but not limited to reasonable severance damages and condemnee's abstracting expenses. In determining the amount of such severance damages, account shall be taken, together with other relevant factors, of the economic effect, if any, caused by the severance therefrom of the part taken or sought to be taken upon the whole of such property as a going concern as it will be and remain after the severance. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than due to physical deterioration within the reasonable control of the owner, shall be disregarded in determining the compensation for the property. The provisions of this section shall apply to any case now or hereafter pending.

Source:Laws 1959, c. 351, § 5, p. 1242; Laws 1959, c. 352, § 1, p. 1242; Laws 1963, c. 432, § 1, p. 1448; Laws 1967, c. 482, § 1, p. 1493; Laws 1972, LB 1448, § 4.


Annotations

76-710.02. Land situated in irrigation district; damages payable to district.

Whenever lands situated in an irrigation district are acquired by any condemner through eminent domain, and such lands at the time of their acquisition by any condemner, are irrigable and are being served or are capable of being served by facilities of the district to the same extent and in the same manner as lands of like character held under private ownership were served, the condemner, as part of the compensable damages of the acquisition and at the time of such acquisition, shall make a lump-sum payment to the irrigation district in an amount sufficient to:

(1) Pay the pro rata share of the district's bonded indebtedness, if any, and the pro rata share of the district's contract indebtedness to the United States or to the State of Nebraska, if any, allocable to such lands, plus interest on such pro rata share in the event such indebtedness is not callable in advance of maturity;

(2) Pay any deferred installments of local improvement district assessments against such lands, if any; and

(3) Produce, if invested at an annual rate of interest equivalent to that set forth in current tables issued by the Director of Banking and Finance of the State of Nebraska, a sum of money equal to the annual increase in operation and maintenance costs against remaining lands in the district resulting from the severance from the district of the lands thus acquired by the condemner. For the purposes of determining the amount of such lump-sum payment, the annual maintenance and operation assessment of the district shall be considered to be the average for the ten years, or so many years as the district has assessment experience, if less than ten years, preceding the date of acquisition.

Source:Laws 1969, c. 613, § 1, p. 2493.


76-710.03. Land devoted to agricultural purposes; acquisition to construct power transmission lines; route selected.

Whenever a condemner seeks to acquire lands or interest therein through eminent domain proceedings to construct power transmission lines through or over land devoted to agricultural purposes, such condemner shall be required to select a route along or following sections or one-half section lines unless such route cannot be followed without excessive and unreasonable costs to the condemner.

Source:Laws 1978, LB 917, § 5.


76-710.04. Economic development purpose; restriction on use of eminent domain.

(1) A condemner may not take property through the use of eminent domain under sections 76-704 to 76-724 if the taking is primarily for an economic development purpose.

(2) For purposes of this section, economic development purpose means taking property for subsequent use by a commercial for-profit enterprise or to increase tax revenue, tax base, employment, or general economic conditions.

(3) This section does not affect the use of eminent domain for:

(a) Public projects or private projects that make all or a major portion of the property available for use by the general public or for use as a right-of-way, aqueduct, pipeline, transmission line, or similar use;

(b) Removing harmful uses of property if such uses constitute an immediate threat to public health and safety;

(c) Leasing property to a private person who occupies an incidental part of public property or a public facility, such as a retail establishment on the ground floor of a public building;

(d) Acquiring abandoned property;

(e) Clearing defective property title;

(f) Taking private property for use by a utility or railroad;

(g) Taking private property based upon a finding of blighted or substandard conditions under the Community Development Law if the private property is not agricultural land or horticultural land as defined in section 77-1359; and

(h) Taking private property for a transmission line to serve a privately developed facility generating electricity using wind, solar, biomass, or landfill gas. Nothing in this subdivision shall be construed to grant the power of eminent domain to a private entity.

Source:Laws 2006, LB 924, § 2;    Laws 2010, LB1048, § 9.    


Cross References

Annotations

76-711. Condemner; interest in property; deposit of awards; abandonment; appeal; interest; writ of assistance; removal of property; liability.

The condemner shall not acquire any interest in or right to possession of the property condemned until he or she has deposited with the court for the use of the condemnee the amount of the condemnation award in effect at the time the deposit is made. The condemner shall have sixty days from the date of the award of the appraisers to deposit with the court the amount of the award or the proceeding will be considered as abandoned. When the amount of the award is deposited with the court by the condemner, the condemner shall be deemed to have accepted the award unless he or she gives notice of appeal from the award of the appraisers pursuant to section 76-715. If the proceeding is abandoned, proceedings may not again be instituted by the condemner to condemn the property within two years from the date of abandonment.

If an appeal is taken from the award of the appraisers by the condemnee and the condemnee obtains a greater amount than that allowed by the appraisers, the condemnee shall be entitled to interest from the date of the deposit at the rate provided in section 45-104.02, as such rate may from time to time be adjusted, compounded annually, on the amount finally allowed, less interest at the same rate on the amount withdrawn or on the amount which the condemner offers to stipulate for withdrawal as provided by section 76-719.01. If an appeal is taken from the award of the appraisers by the condemner, the condemnee shall be entitled to interest from the date of deposit at the rate provided in section 45-104.02, as such rate may from time to time be adjusted, compounded annually, on the amount finally allowed, less interest at the same rate on the amount withdrawn or on the amount which the condemner offers to stipulate for withdrawal as agreed to by the condemnee as provided by section 76-719.01.

Upon deposit of the condemnation award with the court, the condemner shall be entitled to a writ of assistance to place him or her in possession of the property condemned and the condemnee shall be liable for diminution in the value of the property caused by the condemnee's purposeful removal of real or personal property not previously agreed to in writing by the condemner and condemnee from the condemned property.

Source:Laws 1951, c. 101, § 11, p. 454; Laws 1959, c. 351, § 1, p. 1240; Laws 1961, c. 369, § 1, p. 1141; Laws 1971, LB 191, § 1; Laws 1982, LB 705, § 1; Laws 1987, LB 601, § 5; Laws 1990, LB 1153, § 59; Laws 1992, Fourth Spec. Sess., LB 1, § 12.


Annotations

76-712. Condemnation award; certification; filing; state or federal-aid highways; failure to make deposit within sixty days; effect.

Upon deposit of the condemnation award, the court shall prepare and certify under seal a true copy thereof and shall transmit the same to the register of deeds of the county where any real estate or interest therein is condemned and to the county clerk of the county where personal property only is condemned. When real estate or personal property in two or more counties is condemned, a certified copy of the condemnation award shall be filed in each county where any property is situated. The amount of the condemnation award in all condemnation proceedings for the state highway system established by Chapter 39, article 13, or for any highway or urban extension thereof which is a part of the National System of Interstate and Defense Highways as defined in the Federal Aid Highway Act of 1956, and qualified for federal aid thereunder, shall be deposited with the court within sixty days from the filing of the appraisers' award. In such proceedings, if the condemner fails to make such deposit within sixty days from the filing of the appraisers' award, the condemner shall be deemed to have abandoned the condemnation proceeding.

Source:Laws 1951, c. 101, § 12, p. 455; Laws 1959, c. 351, § 2, p. 1240; Laws 1961, c. 370, § 4, p. 1145; Laws 1987, LB 601, § 6.


Annotations

76-713. Condemnation award; recording; effect.

The register of deeds shall record and index the certified copy of the condemnation award in the same manner as is provided for the recording of deeds in this state. The county clerk shall file a copy of the same when only personal property is concerned in the same manner as is provided for the filing of chattel mortgages. Such recording and filing shall have like force and effect as the recording of deeds or filing of chattel mortgages.

Source:Laws 1951, c. 101, § 13, p. 455.


Annotations

76-714. Condemnation; interest acquired; when effective.

The interest in the property acquired by the condemner shall be such title, easement, right-of-way, or use as is expressly specified in or necessarily contemplated by the law granting to the condemner the right to exercise the power of eminent domain. The condemner shall not dispossess the condemnee until the condemner is ready to devote the property to a public use, and such title or interest as the condemner seeks to acquire shall not be complete until the property is put to the public use for which taken.

Source:Laws 1951, c. 101, § 14, p. 455.


Annotations

76-715. Assessment of damages; appeal; procedure.

Either condemner or condemnee may appeal from the assessment of damages by the appraisers to the district court of the county where the petition to initiate proceedings was filed. Such appeal shall be taken by filing a notice of appeal with the county judge within thirty days from the date of filing of the report of appraisers as provided in section 76-710.

Source:Laws 1951, c. 101, § 15, p. 455.


Annotations

76-715.01. Assessment of damages; appeal notice; contents; filing.

The party appealing from the award for assessment of damages by the appraisers in any eminent domain action shall, within thirty days of the filing of the award, file a notice of appeal with the court, specifying the parties taking the appeal and the award thereof appealed from, and shall serve a copy of the same upon all parties bound by the award or upon their attorneys of record. Service may be made by mail, and proof of such service shall be made by an affidavit of the appellant filed with the court within five days after the filing of the notice stating that such notice of appeal was duly mailed or that after diligent search the addresses of such persons or their attorneys of record are unknown.

Source:Laws 1965, c. 454, § 1, p. 1447; Laws 1987, LB 601, § 7.


Annotations

76-716. Appeal; bond; conditions.

The party appealing shall also, at the time of filing of notice of appeal, enter into an undertaking, with at least one good and sufficient surety, to be approved by the county judge conditioned (1) that the appellant will prosecute such appeal to effect without unnecessary delays, and (2) that if judgment be rendered against appellant on the appeal, the appellant will satisfy whatever judgment may be rendered against him.

Source:Laws 1951, c. 101, § 16, p. 456.


Annotations

76-717. Appeal; transcript; fees; docketing; delay in acquisition of property; deposit of award, effect.

Within thirty days after the filing of such notice of appeal, the county judge shall prepare and transmit to the clerk of the district court a duly certified transcript of all proceedings had concerning the parcel or parcels of land as to which the particular condemnee takes the appeal upon payment of the fees provided by law for preparation thereof. When notice of appeal is filed by both the condemner and the condemnee, such transcript shall be prepared only in response to the first notice of appeal. The transcript prepared in response to the second notice of appeal shall contain only a copy of such notice and the proceedings shall be docketed in the district court as a single cause of action.

The filing of the notice of appeal shall confer jurisdiction on the district court. The first party to perfect an appeal shall file a petition on appeal in the district court within fifty days after the filing of the notice of appeal. If no petition is filed, the court shall direct the first party to perfect an appeal to file a petition and impose such sanctions as are reasonable. The appeal shall be tried de novo in the district court. Such appeal shall not delay the acquisition of the property and placing of same to a public use if the condemner shall first deposit with the county judge the amount assessed by the appraisers.

Source:Laws 1951, c. 101, § 17, p. 456; Laws 1961, c. 369, § 2, p. 1142; Laws 1973, LB 226, § 29; Laws 1983, LB 270, § 1; Laws 1995, LB 222, § 1.


Annotations

76-717.01. Repealed. Laws 1982, LB 592, § 2.

76-718. Judgment on appeal; certified copy sent to county judge.

After entry of final judgment in the district court on the appeal, a certified copy thereof shall be prepared and transmitted by the clerk of the district court to the county judge.

Source:Laws 1951, c. 101, § 18, p. 456; Laws 2000, LB 921, § 36.    


Annotations

76-719. Appeal from district court; procedure; money on deposit; disposition.

Either condemner or condemnee may appeal from the judgment of the district court to the Court of Appeals in the manner provided by law for taking an appeal in a civil action. In case an appeal is taken either to the district court or the Court of Appeals, any money deposited by the condemner shall remain in the hands of the county judge until a final judgment is rendered except as provided in section 76-719.01.

Source:Laws 1951, c. 101, § 19, p. 456; Laws 1959, c. 351, § 3, p. 1241; Laws 1991, LB 732, § 137.


76-719.01. Deposit of award; payment of amount to condemnee; remainder; how treated; waiver of appeal, effect; judgment against condemnee for overpayment; interest.

Upon stipulation of the parties in interest, the county judge shall order that the amount stipulated by the parties of the money deposited by the condemner in the county court be paid forthwith for or on account of the damages the condemnee has sustained or will sustain by the appropriation of the property to the use of the condemner. When the money remaining on deposit after stipulated payment to the condemnee is five thousand dollars or more, the county court shall place such amount in a savings account of a bank or other financial institution or in interest-bearing obligations of the federal government. The condemner may submit to the court any preferences or suggestions it may have as to the manner and place of such deposit. The amount so deposited shall be insured by the Federal Deposit Insurance Corporation or other federally chartered or guaranteed form of deposit insurance. The risk of loss of any funds so deposited shall be on the condemner. Interest accruing from such deposited funds shall be paid to the condemner.

If all the parties in interest waive the right of appeal, the county judge shall distribute the money deposited by the condemner forthwith in accordance with the award of the appraisers and as soon as deposited by the condemner. If the compensation finally awarded in respect to the property is less than the amount of the money so received by the condemnee, the court shall enter judgment against the condemnee for the amount that the condemnee has been overpaid, together with interest at the rate provided in section 45-104.02, as such rate may from time to time be adjusted, compounded annually from the date of withdrawal.

Source:Laws 1959, c. 351, § 4, p. 1241; Laws 1961, c. 369, § 3, p. 1143; Laws 1969, c. 329, § 13, p. 1184; Laws 1978, LB 917, § 4; Laws 1985, LB 36, § 1; Laws 1992, Fourth Spec. Sess., LB 1, § 13.


Annotations

76-720. Appeal; fees and costs; payment.

If an appeal is taken from the award of the appraisers by the condemnee and the amount of the final judgment is greater by fifteen percent than the amount of the award, or if appeal is taken by the condemner and the amount of the final judgment is not less than eighty-five percent of the award, or if appeal is taken by both parties and the final judgment is greater in any amount than the award, the court may in its discretion award to the condemnee a reasonable sum for the fees of his or her attorney and for fees necessarily incurred for not more than two expert witnesses. On any appeal by the condemner, the condemner shall pay all court costs on appeal. If appeal is taken by the condemnee only and the final judgment is not equal to or greater than the award of the appraisers, the court may in its discretion award to the condemner the court costs incurred by the condemner, but not attorney or expert witness fees.

If an appeal is taken to the district court and the district court finds that the condemner did not negotiate in good faith with the property owner or there was no public purpose for taking the property involved, the court shall award to the condemnee a reasonable sum for the fees of his or her attorney and the condemner shall pay all court costs on appeal.

The changes made to this section by Laws 1995, LB 222, apply to any action pending on March 30, 1995, or filed on or after such date.

Source:Laws 1951, c. 101, § 20, p. 457; Laws 1963, c. 432, § 2, p. 1449; Laws 1980, LB 680, § 1; Laws 1995, LB 222, § 2.


Annotations

76-720.01. Appeal; allowance of fees and costs; applicable to pending cases.

The provisions of section 76-720 shall apply to any case now or hereafter pending on appeal from the award of the appraisers as provided in section 76-710.

Source:Laws 1963, c. 432, § 3, p. 1449.


76-721. Joinder of causes of action on appeal.

Assessments made for property taken and damaged by the same condemner upon and through different property belonging to the same condemnee or condemnees may be joined in one appeal, and proceeded with in the appellate court as separate counts joined in one action for damages to such property.

Source:Laws 1951, c. 101, § 21, p. 457.


76-722. Repealed. Laws 1983, LB 447, § 104.

76-723. Appraisers; fees; appeal; costs; mileage.

The appraisers shall each receive a reasonable fee for their services, to be fixed by the county judge or clerk magistrate, and the same shall be taxed as costs. The fee shall not exceed four hundred twenty-five dollars for each appraiser exclusive of mileage for each day actually employed in attendance on the board of appraisers. The condemner may appeal from the allowance of any fee so fixed to the district court. Such an appeal shall be docketed apart from and shall be considered separately and independently from the rights between the condemnee and condemner. All costs of the first appraisement shall be paid by the condemner. In addition, the appraiser shall receive mileage at the rate provided in section 81-1176 for each mile necessarily traveled.

Source:Laws 1951, c. 101, § 23, p. 457; Laws 1961, c. 371, § 1, p. 1146; Laws 1963, c. 431, § 2, p. 1447; Laws 1987, LB 601, § 8; Laws 1991, LB 303, § 1; Laws 1999, LB 102, § 1.    


Annotations

76-724. Property of minor, mentally incompetent person, married person whose spouse is under guardianship or conservatorship; authority of guardian or conservator.

Notwithstanding any more general or special law respecting sale or conveyance of lands, real estate, real or personal property, or any interests therein now or hereafter owned by any minor, mentally incompetent person, any married person whose spouse is under guardianship or conservatorship, or any persons under conservatorship, the guardian of such minor or mentally incompetent person, such married person with the guardian of such spouse, the conservator of such persons, or any married person with the conservator of such spouse may execute deeds or other instruments for the conveyance of any lands, real or personal property, or any interests therein of such minors, mentally incompetent persons under guardianship, or such persons under conservatorship to the condemner for public purposes upon payment of just compensation by the condemner or, in the event of condemnation, may agree and settle with the condemner for all damages or claims by reason of the taking of the property and may give valid releases and discharges therefor.

Source:Laws 1951, c. 101, § 24, p. 457; Laws 1967, c. 482, § 2, p. 1494; Laws 1986, LB 1177, § 32.


76-725. State; lands necessary for state use; right of eminent domain; procedure.

The State of Nebraska may acquire, by eminent domain, lands necessary for any state use. The procedure to condemn property shall be exercised in the manner set forth in sections 76-704 to 76-724.

Source:Laws 1913, c. 9, § 1, p. 69; R.S.1913, § 7389; Laws 1921, c. 264, § 1, p. 883; C.S.1922, § 7064; C.S.1929, § 83-1601; R.S.1943, § 83-601; Laws 1951, c. 101, § 121, p. 504; R.R.S.1943, § 83-601.


Annotations

76-726. Costs, expenses, fees; awarded; when.

(1) The court having jurisdiction of a proceeding instituted by an agency as defined in section 76-1217 to acquire real property by condemnation shall award the owner of any right, title, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his or her reasonable costs, disbursements, and expenses, including reasonable attorney's, appraisal, and engineering fees, actually incurred because of the condemnation proceedings if (a) the final judgment is that the agency cannot acquire the real property by condemnation or (b) the proceeding is abandoned by the agency. If a settlement is effected, the court may award to the plaintiff reasonable expenses, fees, and costs.

(2) The court having jurisdiction of a proceeding instituted by a condemnee under section 76-705 shall award the condemnee such sum as will, in the opinion of the court, reimburse the condemnee for his or her reasonable costs, disbursements, and expenses, including reasonable attorney's, appraisal, and engineering fees, actually incurred as a result of the taking of or damage to the condemnee's property if (a) the court renders a judgment in favor of the condemnee or (b) a settlement is effected.

Source:Laws 1989, LB 254, § 30.


Annotations

76-801. Act, how cited.

Sections 76-801 to 76-823 shall be known as the Condominium Property Act.

Source:Laws 1963, c. 429, § 1, p. 1435.


76-802. Terms, defined.

For purposes of the Condominium Property Act, unless the context otherwise requires:

(1) Condominium property regime shall mean a project whereby four or more apartments are separately offered or proposed to be offered for sale;

(2) Apartment shall mean an enclosed space consisting of one or more rooms occupying all or part of a floor in a building of one or more floors or stories regardless of whether it is designed for residence, for office, for the operation of any industry or business, or for any other type of independent use, if it has a direct exit to a thoroughfare or to a given common space leading to a thoroughfare;

(3) Co-owner shall mean a person, firm, corporation, partnership, limited liability company, association, trust, or other legal entity, or any combination thereof, which owns an apartment within the building;

(4) Association of co-owners shall mean all the co-owners as defined in subdivision (3) of this section, but a majority as defined in subdivision (8) of this section shall, except as otherwise provided in the act, constitute a quorum for the adoption of decisions;

(5) Board of administrators shall mean the governing board of the regime, consisting of not less than three members selected by and from the co-owners;

(6) General common elements shall mean and include:

(a) The land or leasehold interest in land on which the building stands;

(b) The foundations, main walls, roofs, halls, lobbies, stairways, and entrances and exit or communication ways;

(c) The basements, roofs, yards, and gardens except as otherwise provided or stipulated;

(d) The premises for the lodging of janitors or persons in charge of the building except as otherwise provided or stipulated;

(e) The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration, reservoirs, water tanks and pumps, and the like;

(f) The elevators, garbage incinerators, and, in general, all devices or installations existing for common use; and

(g) All other elements of the building rationally of common use or necessary to its existence, upkeep, and safety;

(7) Limited common elements shall mean and include those common elements which are agreed upon by all the co-owners to be reserved for the use of a certain number of apartments to the exclusion of the other apartments, such as special corridors, stairways and elevators, sanitary services common to the apartments of a particular floor, and the like;

(8) Majority of co-owners shall mean more than fifty percent of the basic value of the property as a whole, in accordance with the percentages computed in accordance with the provisions of section 76-806;

(9) Master deed shall mean the deed establishing the condominium property regime;

(10) Person shall mean an individual, firm, corporation, partnership, limited liability company, association, trust, or other legal entity or any combination thereof;

(11) Property shall mean and include the land, leasehold interests in land, any building, all improvements and structures thereon, and all easements, rights, and appurtenances belonging thereto or any of them alone;

(12) To record shall mean to record in accordance with sections 76-237 to 76-257 or other applicable recording statutes;

(13) Common expense shall mean and include:

(a) All sums lawfully assessed against the apartment owner;

(b) Expense of administration, maintenance, repair, or replacement of common elements; and

(c) Expenses agreed upon as common expenses by the association of co-owners; and

(14) All pronouns used in the Condominium Property Act shall include the male, female, and neuter genders and include the singular or plural numbers, as the case may be.

For condominiums created in this state before January 1, 1984, the definitions in section 76-827 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) through (a)(6) and (a)(11) through (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 2, p. 1435; Laws 1974, LB 730, § 1; Laws 1983, LB 433, § 72; Laws 1993, LB 121, § 479; Laws 1993, LB 478, § 1; Laws 2005, LB 361, § 36.    


Annotations

76-803. Condominium property regime; established.

Whenever a sole owner or the co-owners of property expressly declare, through the recordation of a master deed, which shall set forth the particulars enumerated in section 76-809, their desire to submit their property to the regime established by sections 76-801 to 76-823, there shall thereby be established a condominium property regime.

Source:Laws 1963, c. 429, § 3, p. 1437; Laws 1974, LB 730, § 2.


76-804. Condominium property regime; effect of establishment.

Once the property is submitted to the condominium property regime, an apartment in any building may be individually conveyed and encumbered and may be the subject of ownership, possession, or sale and of all types of juridic acts inter vivos or mortis causa, as if it were solely and entirely independent of the other apartments in the regime of which it forms a part, and the corresponding individual titles and interests shall be recordable as provided in section 76-211, except that the use and enjoyment of each apartment shall be subject to the following rules:

(1) Each apartment shall be devoted solely to the use assigned to it in the deed to which section 76-803 refers;

(2) No tenant of an apartment may make any noise or cause any annoyance or do any act that may disturb the peace of the other co-owners or tenants;

(3) The apartments shall not be used for purposes contrary to law, morals, or normal behavior;

(4) Each co-owner shall carry out at his or her sole expense any works of modification, repair, cleaning, safety, and improvement of his or her apartment, without disturbing the legal use and enjoyment of the rights of the other co-owners, or changing the exterior form of the facades, or painting the exterior walls, doors, or windows in colors or hues different from those of the whole, and without jeopardizing the soundness or safety of the property, reduce its value, or impair any easement or access to or use of common elements; and

(5) Every co-owner or tenant shall strictly comply with the administration provisions set forth in the deed or in the bylaws referred to in section 76-815. Violations of these rules shall be grounds for an action for damages or grounds for an action for injunctive relief by the co-owner or tenant aggrieved.

For condominiums created in this state before January 1, 1984, the provisions on resale of apartments or units, violations which effect a right of action, and separate titles for each apartment or unit in sections 76-829, 76-884, and 76-891.01 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 4, p. 1437; Laws 1974, LB 730, § 3; Laws 1983, LB 433, § 73; Laws 1993, LB 478, § 2.


76-805. Apartment; form of ownership.

Any apartment may be held and owned by more than one person as joint tenants, as tenants in common, or in any other real estate tenancy relationship recognized under the laws of this state.

Source:Laws 1963, c. 429, § 5, p. 1438.


76-806. Apartment; ownership rights; value; computation.

An apartment owner shall have the exclusive ownership of his apartment and shall have a common right to a share, with the other co-owners, in the common elements of the property, equivalent to the percentage representing the value of the individual apartment, with relation to the value of the whole property. This percentage shall be computed by taking as a basis the value of the individual apartment in relation to the value of the property as a whole.

Such percentage shall be expressed at the time the condominium property regime is constituted, shall have a permanent character, and shall not be altered without the acquiescence of the co-owners representing all the apartments of the regime, except as provided in section 76-812.01.

The said basic value, which shall be fixed for the sole purpose of sections 76-801 to 76-823 and irrespectively of the actual value, shall not prevent each co-owner from fixing a different circumstantial value to his apartment in all types of acts and contracts.

Source:Laws 1963, c. 429, § 6, p. 1438; Laws 1974, LB 730, § 4.


76-807. Common elements; not subject to partition or liens; treatment; rules against perpetuities and unreasonable restraints on alienation; not applicable.

The common elements, both general and limited, shall remain undivided and shall not be the object of an action for partition or division of the co-ownership. Any covenant to the contrary shall be void. The rules of property known as the rule against perpetuities and the rule restricting unreasonable restraints on alienation shall not be applied to defeat any of the provisions of the Condominium Property Act or the bylaws of the association of co-owners adopted pursuant to the provisions of such act. The common elements, both general and limited, shall not, in whole or in part, be separately conveyed, mortgaged, or foreclosed nor may liens of any description be applicable to such elements, or parts of such elements, alone. A valid lien for authorized labor and materials shall lie against the apartment of any co-owner affected but not against the common elements. For condominiums created in this state before January 1, 1984, the construction and validity of the master deed and bylaws provided in section 76-840 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 7, p. 1439; Laws 1974, LB 730, § 5; Laws 1983, LB 433, § 74; Laws 1993, LB 478, § 3.


76-808. Co-owner; use of common elements.

Each co-owner may use the elements held in common in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other co-owners.

Source:Laws 1963, c. 429, § 8, p. 1439.


76-809. Master deed; contents; execution; recording.

The master deed creating and establishing the condominium property regime shall be executed by the owner or owners of the property making up the regime and shall be recorded in the office of the register of deeds in the county where such property is located. The master deed shall express the following particulars:

(1) The description of the land or leasehold interest in land and any building, expressing their respective areas;

(2) The general description and number of each apartment, expressing its area and location and any other data necessary for its identification;

(3) The description of the general common elements of the building, and, in proper cases, of the limited common elements restricted to a given number of apartments, expressing which are those apartments;

(4) Value of the property and of each apartment and, according to these basic values, the percentage appertaining to the co-owners in the expenses, including taxes, of and rights in the elements held in common; and

(5) The covenants, conditions, and restrictions relating to the regime, which shall run with the property and bind all co-owners, tenants of such owners, employees, and any other persons who use the property, including the persons who acquire the interest of any co-owner through foreclosure, enforcement of any lien, or otherwise. The master deed creating and establishing or amending the condominium property regime shall not be construed as constituting the subdivision of real estate as defined by law, resolution, or ordinance. For condominiums created in this state before January 1, 1984, the applicability of local ordinances, regulations, and building codes provided in section 76-830 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 9, p. 1439; Laws 1974, LB 730, § 6; Laws 1983, LB 433, § 75; Laws 1993, LB 478, § 4.


76-810. Master deed; plans attached; boundaries.

(1) There shall be attached to the master deed, at the time it is filed for record, a full and exact copy of the plans of any building, which copy of plans shall be entered of record along with the master deed. Said plans shall show graphically all particulars of any building including, but not limited to, the dimensions, area and location of each apartment therein and the dimensions, area and location of common elements affording access to each apartment. Other common elements, both limited and general, shall be shown graphically insofar as possible and shall be described in detail in words and figures. Said plans shall be certified to by an engineer or architect authorized and licensed to practice his profession in this state.

(2) In interpreting the plans or other instruments affecting the property or apartment, the boundaries of the property or apartment constructed or reconstructed in substantial accordance with the plans shall be conclusively presumed to be the actual boundaries rather than the description expressed in the plans, regardless of the settling or lateral movement of the property.

Source:Laws 1963, c. 429, § 10, p. 1440; Laws 1974, LB 730, § 7.


76-811. Apartments; conveyance; legal description.

Each apartment in a building shall be designated, on the plans referred to in section 76-810, by letter or number or other appropriate designation, and any conveyance or other instrument affecting title to the apartment which describes the apartment by using the letter or number followed by the words in .......... Condominium Property Regime shall be deemed to contain a good and sufficient description for all purposes. Any conveyance of an individual apartment shall be deemed to also convey the undivided interest of the owner in the common elements, both general and limited, appertaining to the apartment without specifically or particularly referring to same. For condominiums created in this state before January 1, 1984, the provisions on the description of the apartments or units in section 76-841 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 11, p. 1440; Laws 1983, LB 433, § 76; Laws 1993, LB 478, § 5.


76-812. Disposition of property; vote of co-owners required; effect.

Unless otherwise provided in the master deed or bylaws, the co-owners may, by affirmative vote of at least three-fourths, elect to sell or otherwise dispose of the property, or to waive the condominium property regime; Provided, that the individual apartments are unencumbered, or if encumbered, that the creditors in whose behalf the encumbrances are recorded agree to accept as security the undivided portions of the property owned by the debtors. Upon waiver of the regime, the co-owners shall own the property as tenants in common in accordance with their interests as determined by section 76-806.

Any such action shall be binding upon all co-owners and it shall thereupon be the duty of every co-owner to execute and deliver such instruments and to perform all acts as may be necessary.

Source:Laws 1963, c. 429, § 12, p. 1441.


76-812.01. Condominium property; divided; added to; deleted; procedure; recomputed basic value.

Unless otherwise provided in the master deed or bylaws, land, buildings, apartments, improvements, structures, easements, rights or obligations, in whole or in part, may be divided, added to or deleted from a condominium property regime by approval of at least three-fourths of the co-owners. Upon approval of such divisions, additions or deletions in writing, an amended and revised master deed and attached plans shall be filed for record and the basic values referred to in sections 76-806 and 76-809 shall be recomputed and filed for record as required.

Source:Laws 1974, LB 730, § 8.


76-813. Merger; no bar to subsequent constitution into another condominium property.

The merger provided for in section 76-812 shall in no way bar the subsequent constitution of the property into another condominium property regime whenever so desired and upon observance of the provisions of sections 76-801 to 76-823.

Source:Laws 1963, c. 429, § 13, p. 1441.


76-814. Administration; bylaws; attach to deed.

The administration of every building constituted into condominium property shall be governed by bylaws which shall be inserted in or appended to and recorded with the master deed.

Source:Laws 1963, c. 429, § 14, p. 1441.


76-815. Bylaws; contents.

The bylaws must necessarily provide for at least the following:

(1) Form of administration, including the number and method of selecting the board of administrators, and specifying the powers, manner of removal, and, where proper, the compensation thereof;

(2) Method of calling meetings of the association of co-owners; that a majority of co-owners is required to adopt decisions; who is to preside over the meeting and who will keep the minute book wherein the resolutions shall be recorded;

(3) Care, upkeep and surveillance of the building and its general or limited common elements and services;

(4) Manner of collecting from the co-owners for the payment of the common expenses; and

(5) Designation and dismissal of the personnel necessary for the works and the general or limited common services of the building.

The sole owner of the building, or, if there be more than one, the co-owners representing two-thirds of the total value of the building, may at any time modify the system of administration, but each one of the particulars set forth in this section shall always be embodied in the bylaws. No such modification may be operative until it is embodied in a recorded instrument which shall be recorded in the same office and in the same manner as was the master deed and original bylaws of the condominium property regime involved.

Source:Laws 1963, c. 429, § 15, p. 1441.


76-816. Board of administrators; records; examination.

The board of administrators, or other form of administration specified in the bylaws, shall keep or cause to be kept a book with a detailed account, in chronological order, of the receipts and expenditures affecting the condominium property regime and its administration and specifying the maintenance and repair expenses of the common elements and all other expenses incurred. Both the book and the vouchers accrediting the entries made thereupon shall be available for examination by any co-owner or any prospective purchaser at convenient hours on working days that shall be set and announced for general knowledge. Any prospective purchaser must be designated as such by a co-owner in writing. For condominiums created in this state before January 1, 1984, the provision on the records of the administrative body or association in section 76-876 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 16, p. 1442; Laws 1974, LB 730, § 9; Laws 1983, LB 433, § 77; Laws 1993, LB 478, § 6.


76-817. Expenses; pay pro rata share; failure or refusal; lien; waiver; effect.

The co-owners of the apartments are bound to pay pro rata, in the percentages computed according to section 76-806, toward the expenses of administration and of maintenance and repair of the general common elements and, in the proper case, of the limited common elements, of the building, and toward any other expense lawfully agreed upon.

If any co-owner fails or refuses to make any payment of such common expenses when due, the amount thereof shall constitute a lien on the interest of the co-owner in the property and, upon the recording thereof, shall be a lien in preference over all other liens and encumbrances except assessments, liens, and charges for taxes past due and unpaid on the apartment and duly recorded mortgage and lien instruments.

No co-owner may exempt himself or herself from paying toward such expenses by waiver of the use or enjoyment of the common elements or by abandonment of the apartment belonging to him or her. For condominiums created in this state before January 1, 1984, the provisions on the liens for assessments in section 76-874 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 17, p. 1443; Laws 1983, LB 433, § 78; Laws 1993, LB 478, § 7.


76-818. Sale of apartment; expenses; deducted from sale.

Upon the sale or conveyance of an apartment, all unpaid assessments against a co-owner for his pro rata share in the expenses to which section 76-817 refers shall first be paid out of the sales price or by the acquirer in preference over any other assessments or charges of whatever nature except the following:

(1) Assessments, liens, and charges for taxes past due and unpaid on the apartment; and

(2) Payments due under duly recorded mortgage and lien instruments.

Source:Laws 1963, c. 429, § 18, p. 1443.


76-819. Purchaser; seller; debts owing; liability; tort and contract liability.

The purchaser of an apartment shall be jointly and severally liable with the seller for the amounts owing by the latter under section 76-817 up to the time of the conveyance, without prejudice to the purchaser's right to recover from the other party the amounts paid by him or her as such joint debtor. Co-owners shall not be individually liable for damages arising from the use of common elements. Any tort liability arising from the use of common elements shall be a common expense and shall be borne by all co-owners in proportion to the basic values referred to in sections 76-806 and 76-809. For condominiums created in this state before January 1, 1984, the provisions on tort and contract liability in section 76-869 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 19, p. 1443; Laws 1974, LB 730, § 10; Laws 1983, LB 433, § 79; Laws 1993, LB 478, § 8.


76-820. Insurance; requirements; deficiency in insurance coverage.

The association of co-owners shall insure the property and the association against risk, including tort liability, without prejudice to the right of each co-owner to insure himself or herself or his or her apartment or the contents thereof, on his or her own account and for his or her own benefit. Any policy shall be issued in the name of the board of administrators or as provided in the bylaws, in trust for the benefit of each co-owner in accordance with the percentage interest of each as stated in the master deed. The limits of coverage shall be established by resolution of the board of administrators. Premiums for such insurance shall be included in the common expenses. Any deficiency in insurance coverage shall be borne by all co-owners in proportion to the basic values referred to in sections 76-806 and 76-809, except as provided in section 76-820.01. For condominiums created in this state before January 1, 1984, the powers of the association or administrative body provided in subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 shall apply, to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 20, p. 1444; Laws 1974, LB 730, § 11; Laws 1983, LB 433, § 80; Laws 1993, LB 478, § 9.


76-820.01. Insurance proceeds insufficient to reconstruct buildings; co-owners liable; property owned by co-owners; effect.

Unless otherwise provided in the master deed or bylaws, if the insurance proceeds are insufficient to reconstruct the building or buildings, or other property, damage to or destruction of the building or buildings or other property caused by fire or other disaster shall be promptly repaired and restored by the board of administrators, using proceeds of insurance for that purpose, and the co-owners directly affected by the damage shall be liable for assessment for any deficiency. Such deficiency shall be borne by such co-owners in proportion to the value of their respective apartments as reflected by the basic values referred to in sections 76-806 and 76-809, except that if three-fourths or more of the building or buildings constituting the entire condominium property regime are destroyed or substantially damaged and if the co-owners, by a vote of at least three-fourths of such co-owners, do not voluntarily, within one hundred days after such destruction or damage, make provision for reconstruction, the board of administrators shall record, with the register of deeds, a notice setting forth such facts, and upon the recording of such notice:

(1) The property shall be deemed to be owned in common by the co-owners;

(2) The undivided interest in the property owned in common which shall appertain to each co-owner shall be the percentage of undivided interest previously owned by such owner in the common elements;

(3) Any liens affecting any of the units shall be deemed to be transferred in accordance with the existing priorities to the undivided interest of the unit owner in the property; and

(4) The property shall be subject to an action for partition at the suit of any co-owner, in which event the net proceeds of sale, together with the net proceeds of the insurance on the property, shall be considered as one fund and shall be divided among all the co-owners in a percentage equal to the percentages and basic values of each co-owner in the property as referred to in sections 76-806 and 76-809, after first paying out of the respective shares of the co-owners, to the extent sufficient for such purpose, all liens on the undivided interest in the property owned by each co-owner.

Source:Laws 1974, LB 730, § 12.


76-821. Repealed. Laws 1974, LB 730, § 15.

76-822. Repealed. Laws 1974, LB 730, § 15.

76-823. Taxes and assessments; how assessed and collected.

Taxes, assessments, and other charges of this state, of any political subdivision, of any special improvement district, or of any other taxing or assessing authority shall be assessed against and collected on each individual apartment, each of which shall be carried on the tax books as a separate and distinct entity for that purpose, and not on the building or buildings or property as a whole. No forfeiture or sale of the building or buildings or property as a whole for delinquent taxes, assessments, or charges shall ever divest or in anywise affect the title to an individual apartment so long as taxes, assessments, and charges on the individual apartment are currently paid. The common elements, both general and limited, shall not be separately taxed or foreclosed for tax purposes. The value of the common elements shall be determined by the assessor and apportioned for taxes against the several apartments in proportion to the basic values referred to in sections 76-806 and 76-809. Restrictions on alienation of the common elements shall be given weight by the assessor in determining valuations. For condominiums created in this state before January 1, 1984, the provisions on the separate taxation of each apartment in section 76-829 shall apply to the extent necessary in construing the provisions of sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 which apply to events and circumstances which occur after January 1, 1984.

Source:Laws 1963, c. 429, § 23, p. 1445; Laws 1974, LB 730, § 13; Laws 1983, LB 433, § 81; Laws 1993, LB 478, § 10.


76-824. Existing condominium property regimes; amendments to Condominium Property Act; effect.

Existing condominium property regimes, by approval of the co-owners, may choose to adopt, in whole or in part, amendments to the Condominium Property Act when effective or may choose to continue in existence pursuant to the terms of the act in effect on the date of filing of the master deed.

Source:Laws 1974, LB 730, § 14.


76-824.01. Applicability of sections.

For condominiums created in this state before January 1, 1984, sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860 shall apply to the extent necessary in construing the provisions of such sections which apply to events and circumstances which occur after January 1, 1984, notwithstanding any provisions to the contrary in sections 76-801 to 76-824.

Source:Laws 1983, LB 433, § 82; Laws 1993, LB 478, § 11.


76-825. Act, how cited.

Sections 76-825 to 76-894 shall be known and may be cited as the Nebraska Condominium Act.

Source:Laws 1983, LB 433, § 1; Laws 1984, LB 1105, § 2; Laws 1993, LB 478, § 12; Laws 2013, LB442, § 2.    


76-826. Sections, applicability.

(a) The Nebraska Condominium Act shall apply to all condominiums created within this state after January 1, 1984. Sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860, to the extent necessary in construing any of those sections, apply to all condominiums created in this state before January 1, 1984; but those sections apply only with respect to events and circumstances occurring after January 1, 1984, and do not invalidate existing provisions of the master deed, bylaws, or plans of those condominiums.

(b) The provisions of sections 76-801 to 76-824 do not apply to condominiums created after January 1, 1984, and do not invalidate any amendment to the master deed, bylaws, and plans of any condominium created before January 1, 1984, if the amendment would be permitted by the Nebraska Condominium Act. The amendment must be adopted in conformity with the procedures and requirements specified by those instruments and by sections 76-801 to 76-824. If the amendment grants to any person any rights, powers, or privileges permitted by the Nebraska Condominium Act, all correlative obligations, liabilities, and restrictions in the act also apply to that person.

(c) The Nebraska Condominium Act shall not apply to condominiums or units located outside this state, but the public-offering statement provisions contained in sections 76-879 to 76-883 apply to all contracts for the disposition thereof signed in this state by any party unless exempt under subsection (b) of section 76-878.

Source:Laws 1983, LB 433, § 2; Laws 1993, LB 478, § 13.


76-827. Terms, defined.

In the declaration and bylaws, unless specifically provided otherwise or the context otherwise requires, and in the Nebraska Condominium Act:

(1) Affiliate of a declarant means any person who controls, is controlled by, or is under common control with a declarant. A person controls a declarant if the person (i) is a general partner, member, officer, director, or employer of the declarant, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty percent of the voting interest in the declarant, (iii) controls in any manner the election of a majority of the directors of the declarant, or (iv) has contributed more than twenty percent of the capital of the declarant. A person is controlled by a declarant if the declarant (i) is a general partner, member, officer, director, or employer of the person, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than twenty percent of the voting interest in the person, (iii) controls in any manner the election of a majority of the directors of the person, or (iv) has contributed more than thirty percent of the capital of the person. Control does not exist if the powers described in this paragraph are held solely as security for an obligation and are not exercised.

(2) Allocated interests means the undivided interest in the common elements, the common expense liability, and votes in the association allocated to each unit.

(3) Association or unit owners association means the unit owners association organized under section 76-859.

(4) Common elements means all portions of a condominium other than the units.

(5) Common expenses means expenditures made by or financial liabilities of the association, together with any allocations to reserves.

(6) Common expense liability means the liability for common expenses allocated to each unit pursuant to section 76-844.

(7) Condominium means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

(8) Conversion building means a building that at any time before creation of the condominium was occupied wholly or partially by persons other than purchasers and persons who occupy with the consent of purchasers.

(9) Declarant means any person or group of persons acting in concert who (i) as part of a common promotional plan, offers to dispose of his, her, or its interest in a unit not previously disposed of, or (ii) reserves or succeeds to any special declarant right.

(10) Declaration means any instruments, however denominated, that create a condominium, and any amendments to those instruments.

(11) Development rights means any right or combination of rights reserved by a declarant in the declaration to (i) add real estate to a condominium; (ii) create units, common elements, or limited common elements within a condominium; (iii) subdivide units or convert units into common elements; or (iv) withdraw real estate from a condominium.

(12) Dispose or disposition means a voluntary transfer to a purchaser of any legal or equitable interest in a unit, but does not include the transfer or release of a security interest.

(13) Executive board means the body, regardless of name, designated in the declaration to act on behalf of the association.

(14) Identifying number means a symbol or address that identifies only one unit in a condominium.

(15) Leasehold condominium means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size.

(16) Limited common element means a portion of the common elements allocated by the declaration or by operation of subsection (2) or (4) of section 76-839 for the exclusive use of one or more but fewer than all of the units.

(17) Master association means an organization described in section 76-857, whether or not it is also an association described in section 76-859.

(18) Offering means any advertisement, inducement, solicitation, or attempt to encourage any person to acquire any interest in a unit, other than as security for an obligation. An advertisement in a newspaper or other periodical of general circulation, or in any broadcast medium to the general public, of a condominium not located in this state, is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the condominium is located.

(19) Person means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity. In the case of a land trust, however, person means the beneficiary of the trust rather than the trust or the trustee.

(20) Purchaser means any person, other than a declarant or a person in the business of selling real estate for his or her own account, who by means of a voluntary transfer acquires a legal or equitable interest in a unit other than (i) a leasehold interest including renewal options of less than twenty years, or (ii) as security for an obligation.

(21) Real estate means any leasehold or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests which by custom, usage, or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. Real estate includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water.

(22) Residential purposes means use for dwelling or recreational purposes, or both.

(23) Special declarant rights means rights reserved for the benefit of a declarant to (i) complete improvements indicated on plats and plans filed with the declaration as provided in section 76-846; (ii) exercise any development right pursuant to section 76-847; (iii) maintain sales offices, management offices, signs advertising the condominium, and models pursuant to section 76-852; (iv) use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium pursuant to section 76-853; (v) make the condominium part of a larger condominium or a planned community pursuant to section 76-858; (vi) make the condominium subject to a master association pursuant to section 76-857; or (vii) appoint or remove any officer of the association or any master association or any executive board member during any period of declarant control pursuant to subsection (d) of section 76-861.

(24) Unit means a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described pursuant to subdivision (a)(5) of section 76-842.

(25) Unit owner means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation.

Source:Laws 1983, LB 433, § 3; Laws 1993, LB 121, § 480.


76-828. Sections; variance, evasion, and waiver; prohibited.

Except as expressly provided in sections 76-825 to 76-894, provisions of sections 76-825 to 76-894 may not be varied by agreement, and rights conferred by sections 76-825 to 76-894 may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of sections 76-825 to 76-894 or the declaration.

Source:Laws 1983, LB 433, § 4.


76-829. Unit; separate treatment; taxation.

(a) If there is any unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.

(b) If there is any unit owner other than a declarant, each unit must be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights.

(c) If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by law.

Source:Laws 1983, LB 433, § 5.


76-830. Applicability of local ordinances, regulations, and building codes.

A zoning, subdivision, building code, or other real estate use law, ordinance, or regulation may not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership. Otherwise, no provision of sections 76-825 to 76-894 invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation.

Source:Laws 1983, LB 433, § 6.


76-831. Unit; eminent domain; conditions.

(a) If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award must compensate the unit owner for his or her unit and its interest, in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit's allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element.

(b) Except as provided in subsection (a) of this section, if part of a unit is acquired by eminent domain, the award must compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, (1) that unit's allocated interests are reduced in proportion to the reduction in the size of the unit, or on any other basis specified in the declaration, and (2) the portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.

(c) If part of the common elements is acquired by eminent domain the portion of the award attributable to the common elements taken must be paid to the association. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element must be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.

(d) The court decree shall be recorded in every county in which any portion of the condominium is located.

Source:Laws 1983, LB 433, § 7.


76-832. Supplemental, general provisions of law applicable.

The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of sections 76-825 to 76-894, except to the extent inconsistent with sections 76-825 to 76-894.

Source:Laws 1983, LB 433, § 8.


76-833. Construction against implicit repeal.

Sections 76-825 to 76-894 being a general act intended as a unified coverage of its subject matter, no part of it shall be construed to be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.

Source:Laws 1983, LB 433, § 9.


76-834. Uniformity of application and construction.

Sections 76-825 to 76-894 shall be applied and construed so as to effectuate their general purpose to make uniform the law with respect to the subject of sections 76-825 to 76-894 among states enacting such sections.

Source:Laws 1983, LB 433, § 10.


76-835. Severability.

If any provision of sections 76-825 to 76-894 or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of sections 76-825 to 76-894 which can be given effect without the invalid provisions or applications, and to this end the provisions of sections 76-825 to 76-894 are severable.

Source:Laws 1983, LB 433, § 11.


76-835.01. Unconscionable agreement or term of contract.

(a) The court, upon finding as a matter of law that a contract or contract clause was unconscionable at the time the contract was made, may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the application of any unconscionable clause in order to avoid an unconscionable result.

(b) Whenever it is claimed, or appears to the court, that a contract or any contract clause is or may be unconscionable, the parties, in order to aid the court in making the determination, shall be afforded a reasonable opportunity to present evidence as to:

(1) The commercial setting of the negotiations;

(2) Whether a party has knowingly taken advantage of the inability of the other party reasonably to protect his or her interests by reason of physical or mental infirmity, illiteracy, or inability to understand the language of the agreement or similar factors;

(3) The effect and purpose of the contract or clause; and

(4) If a sale, any gross disparity, at the time of contracting, between the amount charged for the real estate and the value of the real estate measured by the price at which similar real estate was readily obtainable in similar transactions, but a disparity between the contract price and the value of the real estate measured by the price at which similar real estate was readily obtainable in similar transactions does not, of itself, render the contract unconscionable.

Source:Laws 1993, LB 478, § 14.


76-836. Obligation of good faith.

Every contract governed by sections 76-825 to 76-894 imposes an obligation of good faith in its performance.

Source:Laws 1983, LB 433, § 12.


76-837. Remedies; how administered and enforced.

(a) The remedies provided by sections 76-825 to 76-894 shall be administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed. However, consequential or special damages may not be awarded except as specifically provided in sections 76-825 to 76-894 or by other rule of law.

(b) Any right or obligation declared by sections 76-825 to 76-894 is enforceable by judicial proceeding.

Source:Laws 1983, LB 433, § 13.


76-838. Creation of condominium; procedure; additional units.

(a) A condominium may be created pursuant to sections 76-825 to 76-894 only by recording a declaration executed in the same manner as a deed. The declaration must be recorded in every county in which any portion of the condominium is located.

(b) An amendment to a declaration adding units to a condominium that would increase the voting rights of the declarant within the association shall not be effective for that purpose until the foundation of each building containing additional units has been substantially completed.

Source:Laws 1983, LB 433, § 14; Laws 1984, LB 1105, § 3.


76-839. Common elements; unit boundaries.

Except as provided by the declaration:

(1) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.

(2) If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements.

(3) Subject to the provisions of paragraph (2) of this section, all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit.

(4) Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

Source:Laws 1983, LB 433, § 15.


76-840. Construction and validity of declaration and bylaws.

(a) All provisions of the declaration and bylaws are severable.

(b) The rule against perpetuities may not be applied to defeat any provision of the declaration, bylaws, rules, or regulations adopted pursuant to subdivision (a)(1) of section 76-860.

(c) In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with sections 76-825 to 76-894.

(d) Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with sections 76-825 to 76-894. Whether a substantial failure impairs marketability is not affected by sections 76-825 to 76-894.

Source:Laws 1983, LB 433, § 16.


76-841. Legal description of unit; requirements.

A description of a unit which sets forth the name of the condominium, the recording data for the declaration, the county in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration or bylaws.

Source:Laws 1983, LB 433, § 17.


76-842. Declaration; contents.

(a) The declaration for a condominium must contain:

(1) the name of the condominium, which must include the word condominium or be followed by the words a condominium, and the name of the association;

(2) the name of every county in which any part of the condominium is situated;

(3) a legally sufficient description of the real estate included in the condominium;

(4) a statement of the anticipated number of units which the declarant reserves the right to create, subject to an amendment of the declaration to add more units pursuant to the Nebraska Condominium Act;

(5) a description of the boundaries of each unit created by the declaration, including the unit's identifying number;

(6) a description of any limited common elements, other than those specified in subdivision (b)(8) of section 76-846;

(7) a general description of any development rights and other special declarant rights defined in subsection (23) of section 76-827 reserved by the declarant;

(8) an allocation to each unit of the allocated interests in the manner described in section 76-844;

(9) any restrictions on use, occupancy, and alienation of the units; and

(10) all matters required by sections 76-843 to 76-846, 76-852, and 76-853, and subsection (d) of section 76-861.

(b) Except as otherwise provided in section 76-856, the declaration may contain any other matters the declarant deems appropriate.

Source:Laws 1983, LB 433, § 18; Laws 2013, LB442, § 3.    


76-843. Leasehold condominiums; requirements.

(a) Any lease the expiration or termination of which may terminate the condominium or reduce its size, or a memorandum thereof, shall be recorded. Every lessor of those leases must sign the declaration, and the declaration shall state:

(1) where the lease is recorded or a statement of where the complete lease may be inspected;

(2) the date on which the lease is scheduled to expire;

(3) a legally sufficient description of the real estate subject to the lease;

(4) any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights pursuant to the lease;

(5) any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights; and

(6) any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights.

(b) After the declaration for a leasehold condominium is recorded, neither the lessor nor his or her successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his or her share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner's leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant.

(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.

(d) If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests shall be reallocated in accordance with subsection (a) of section 76-831 as though those units had been taken by eminent domain. Reallocations shall be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.

Source:Laws 1983, LB 433, § 19.


76-844. Allocation of common elements, expenses, and votes; how made.

(a) The declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit and state the formulas used to establish those allocations. Those allocations may not discriminate in favor of units owned by the declarant.

(b) If units may be added to or withdrawn from the condominium, the declaration must state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.

(c) The declaration may provide: (i) that different allocations of votes shall be made to the units on particular matters specified in the declaration; (ii) for cumulative voting only for the purpose of electing members of the executive board; and (iii) for class voting on specified issues affecting the class if necessary to protect valid interests of the class. A declarant may not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by sections 76-825 to 76-894, nor may units constitute a class because they are owned by a declarant.

(d) Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units must equal one if stated as fractions or one hundred percent if stated as percentages. In the event of discrepancy between an allocated interest and the result derived from application of the pertinent formula, the allocated interest prevails.

(e) The common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated, is void.

Source:Laws 1983, LB 433, § 20.


76-845. Limited common elements; allocation; how made.

(a) Except for the limited common elements described in subdivisions (2) and (4) of section 76-839, the declaration shall specify to which unit or units each limited common element is allocated. That allocation may not be altered without the consent of the unit owners whose units are affected.

(b) Except as the declaration otherwise provided, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy thereof to the association, which shall record it.

(c) A common element not previously allocated as a limited common element may not be so allocated except pursuant to provisions in the declaration. The allocations shall be made by amendments to the declaration.

Source:Laws 1983, LB 433, § 21.


76-846. Plats and plans; requirements.

(a) Plats and plans are a part of the declaration. Separate plats and plans are not required by sections 76-825 to 76-894 if all the information required by this section is contained in either a plat or plan.

(b) Each plat must show:

(1) the name and a survey or general schematic map of the entire condominium;

(2) the extent of any existing encroachments by or upon any portion of the condominium;

(3) to the extent feasible, a legally sufficient description or drawing of all easements serving or burdening any portion of the condominium;

(4) the location and dimensions of any vertical unit boundaries not shown or projected on plans recorded pursuant to subsection (d) of this section and that unit's identifying number;

(5) the location with reference to an established datum of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (d) of this section and that unit's identifying number;

(6) a legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as leasehold real estate;

(7) the distance between noncontiguous parcels of real estate comprising the condominium; and

(8) the location and dimensions of limited common elements, including porches, balconies, and patios, other than parking spaces and the other limited common elements described in subdivisions (2) and (4) of section 76-839.

(c) A plat may also show the intended location and dimensions of any contemplated improvement to be constructed anywhere within the condominium. Any contemplated improvement shown must be labeled either Must Be Built or Need Not Be Built.

(d) To the extent not shown or projected on the plats, plans of the units must show or project:

(1) the location and dimensions of the vertical boundaries of each unit, and that unit's identifying number;

(2) any horizontal unit boundaries, with reference to an established datum, and that unit's identifying number; and

(3) any units in which the declarant has reserved the right to create additional units or common elements pursuant to subsection (c) of section 76-847, identified appropriately.

(e) Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part, and need not be depicted on the plats and plans.

(f) Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the requirements of subsections (a), (b), and (d) of this section, or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of those subsections.

(g) Any plat or plan required by sections 76-825 to 76-894 must be prepared by a registered surveyor, an architect, or a professional engineer.

Source:Laws 1983, LB 433, § 22; Laws 1997, LB 622, § 113.


76-847. Exercise of development rights.

(a) To exercise any development right reserved under sections 76-825 to 76-894, the declarant shall prepare, execute, and record an amendment to the declaration pursuant to section 76-854 and comply with section 76-846. The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created, and, except in the case of subdivision or conversion of units described in subsection (b) of this section, reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by section 76-845 regarding limited common elements.

(b) Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by sections 76-825 to 76-894, as the case may be and the plats and plans include all matters required by section 76-846.

(c) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:

(1) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain as provided in section 76-831.

(2) If the declarant subdivides the unit into two or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.

(d) If the declaration provides that all or a portion of the real estate is subject to the development right of withdrawal:

(1) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and

(2) If a portion or portions are subject to withdrawal, no portion may be withdrawn after a unit in that portion has been conveyed to a purchaser.

Source:Laws 1983, LB 433, § 23.


76-848. Alteration of units.

Subject to the provisions of the declaration and other provisions of law, a unit owner:

(1) may make any improvements or alterations to his or her unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium;

(2) may not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without permission of the association; and

(3) after acquiring an adjoining unit or an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this paragraph is not an alteration of boundaries.

Source:Laws 1983, LB 433, § 24.


76-849. Relocation of boundaries between units; procedure.

(a) Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners of the adjoining units have specified a reallocation between their units of their allocated interests, the application must state the proposed reallocations. Unless the executive board determines within thirty days that the reallocations are unreasonable, the association shall prepare an amendment that identifies the units involved, states the reallocations, is executed by those unit owners, and contains words of conveyance between them.

(b) The association shall prepare and record plats or plans necessary to show the altered boundaries between adjoining units and their dimensions and identifying numbers.

Source:Laws 1983, LB 433, § 25; Laws 1984, LB 1105, § 4.


76-850. Subdivision of units; procedure.

(a) If the declaration expressly so permits, a unit may be subdivided into two or more units. Subject to the provisions of the declaration and other provisions of law, upon application of a unit owner to subdivide a unit, the association shall prepare, execute, and record an amendment to the declaration, including the plats and plans, subdividing that unit.

(b) The amendment to the declaration must be executed by the owner of the unit to be subdivided, assign an identifying number to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in any reasonable manner prescribed by the owner of the subdivided unit.

Source:Laws 1983, LB 433, § 26.


76-851. Easement for encroachment.

To the extent that any unit or common element encroaches on any other unit or common element, a valid easement for the encroachment exists. The easement does not relieve a unit owner of liability in case of his or her willful misconduct nor relieve a declarant or any other person of liability for failure to adhere to the plats and plans.

Source:Laws 1983, LB 433, § 27.


76-852. Use for sales purposes; restrictions.

A declarant may maintain sales offices, management offices, and models in units or on common elements in the condominium only if the declaration so provides and specifies the rights of a declarant with regard to the number, size, location, and relocation thereof. Any sales office, management office, or model not designated a unit by the declaration is a common element, and if declarant ceases to be a unit owner, he or she ceases to have any rights with regard thereto unless it is removed promptly from the condominium in accordance with a right to remove reserved in the declaration. Subject to any limitations in the declaration, a declarant may maintain signs on the common elements advertising the condominium. The provisions of this section are subject to the provisions of other state law, and to local ordinances.

Source:Laws 1983, LB 433, § 28.


76-853. Easement through common elements.

Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant's obligations or exercising special declarant rights, whether arising under sections 76-825 to 76-894 or reserved in the declaration.

Source:Laws 1983, LB 433, § 29.


76-854. Amendment to declaration; procedure.

(a) Except in cases of amendments that may be executed by (1) a declarant under subsection (f) of section 76-846 or under section 76-847, (2) the association under section 76-831 or 76-850, subsection (d) of section 76-843, subsection (c) of section 76-845, or subsection (a) of section 76-849, or (3) certain unit owners under subsection (b) of section 76-845, subsection (a) of section 76-849, subsection (b) of section 76-850, or subsection (b) of section 76-855, and except as limited by subsection (d) of this section, the declaration, including the plats and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use.

(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.

(c) Every amendment to the declaration must be recorded in every county in which any portion of the condominium is located and is effective only upon recordation.

(d) Except to the extent expressly permitted or required by other provisions of the Nebraska Condominium Act, no amendment may create or increase special declarant rights, increase the number of units, or change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted in the absence of the unanimous consent of the unit owners.

(e) Amendments to the declaration required by the act to be recorded by the association shall be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

Source:Laws 1983, LB 433, § 30; Laws 1984, LB 1105, § 5; Laws 1993, LB 478, § 15.


76-855. Termination of condominium; distribution of proceeds; foreclosure of lien; effect.

(a) Except in the case of a taking of all units by eminent domain as provided in section 76-831, a condominium may be terminated only by agreement of unit owners of units to which at least eighty percent of the votes in the association are allocated, or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units in the condominium are restricted exclusively to nonresidential uses.

(b) An agreement to terminate must be evidenced by the execution of a termination agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The termination agreement must specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof must be recorded in every county in which a portion of the condominium is situated, and is effective only upon recordation.

(c) In the case of a condominium containing only units having horizontal boundaries described in the declaration, a termination agreement may provide that all the common elements and units of the condominium shall be sold following termination. If, pursuant to the agreement, any real estate in the condominium is to be sold following termination, the termination agreement must set forth the minimum terms of the sale.

(d) In the case of a condominium containing any units not having horizontal boundaries described in the declaration, a termination agreement may provide for sale of the common elements, but may not require that the units be sold following termination, unless the declaration as originally recorded provided otherwise or unless all the unit owners consent to the sale.

(e) The association, on behalf of the unit owners, may contract for the sale of real estate in the condominium, but the contract is not binding on the unit owners until approved pursuant to subsections (a) and (b) of this section. If any real estate in the condominium is to be sold following termination, title to that real estate, upon termination, vests in the association as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale must be distributed to unit owners and lienholders as their interests may appear, in proportion to the respective interests of unit owners as provided in subsection (h) of this section. Unless otherwise specified in the termination agreement, as long as the association holds title to the real estate, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit. During the period of that occupancy, each unit owner and his or her successors in interest remain liable for all assessments and other obligations imposed on unit owners by sections 76-825 to 76-894 or the declaration.

(f) If the real estate constituting the condominium is not to be sold following termination, title to the common elements and, in a condominium containing only units having horizontal boundaries described in the declaration, title to all the real estate in the condominium, vests in the unit owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (h) of this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit.

(g) Following termination of the condominium, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests may appear. Following termination, creditors of the association holding liens on the units, which were recorded before termination, may enforce those liens in the same manner as any lienholder. All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.

(h) The respective interests of unit owners referred to in subsections (e), (f), and (g) of this section are as follows:

(1) Except as provided in paragraph (2) of this subsection, the respective interests of unit owners are the fair market values of their units, limited common elements, and common element interests immediately before the termination, as determined by one or more independent appraisers selected by the association. The decision of the independent appraisers shall be distributed to the unit owners and becomes final unless disapproved within thirty days after distribution by unit owners of units to which twenty-five percent of the votes in the association are allocated. The proportion of any unit owner's interest to that of all unit owners is determined by dividing the fair market value of that unit owner's unit and common element interest by the total fair market values of all the units and common elements.

(2) If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof before destruction cannot be made, the interests of all unit owners are their respective common element interests immediately before the termination.

(i) Except as provided in subsection (j) of this section, foreclosure or enforcement of a lien or encumbrance against the entire condominium does not of itself terminate the condominium, and foreclosure or enforcement of a lien or encumbrance against a portion of the condominium, other than withdrawable real estate, does not withdraw that portion from the condominium. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the condominium, but the person taking title thereto has the right to require from the association, upon request, an amendment excluding the real estate from the condominium.

(j) If a lien or encumbrance against a portion of the real estate comprising the condominium has priority over the declaration, and the lien or encumbrance has not been partially released, and the parties foreclosing the lien or encumbrance have not assented to or are not joining the declaration establishing such condominium, such parties may upon foreclosure, record an instrument excluding the real estate subject to that lien or encumbrance from the condominium.

Source:Laws 1983, LB 433, § 31.


76-856. Rights of secured lenders; restrictions on lien.

The declaration may require that all or a specified number or percentage of the mortgagees or beneficiaries of deeds of trust encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but no requirement for approval may operate to (i) deny or delegate control over the general administrative affairs of the association by the unit owners or the executive board, or (ii) prevent the association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds except pursuant to section 76-871. The declaration may not provide that a lien on a member's unit for any assessment levied against the unit relates back to the date of filing of the declaration or that such lien takes priority over any mortgage or deed of trust on the unit recorded subsequent to the filing of the declaration and prior to the recording by the association of the notice required under subsection (a) of section 76-874.

Source:Laws 1983, LB 433, § 32; Laws 2013, LB442, § 4.    


76-857. Corporation, unincorporated association, master association, executive board; powers authorized.

(a) If the declaration for a condominium provides that any of the powers described in section 76-860 are to be exercised by or may be delegated to a profit or nonprofit corporation, or unincorporated association, which exercises those or other powers on behalf of one or more condominiums or for the benefit of the unit owners of one or more condominiums, all provisions of sections 76-825 to 76-894 applicable to unit owners associations apply to any such corporation or unincorporated association, except as modified by this section.

(b) Unless a master association is acting in the capacity of an association described in section 76-859, it may exercise the powers set forth in subdivision (a)(2) of section 76-860 only to the extent expressly permitted in the declarations of condominiums which are part of the master association or expressly described in the delegations of power from those condominiums to the master association.

(c) If the declaration of any condominium provides that the executive board may delegate certain powers to a master association, the members of the executive board have no liability for the acts or omissions of the master association with respect to those powers following delegation.

(d) The rights and responsibilities of unit owners with respect to the unit owners association set forth in sections 76-861, 76-866 to 76-868, and 76-870 apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association, whether or not those persons are otherwise unit owners within the meaning of sections 76-825 to 76-894.

(e) Notwithstanding the provisions of subsection (f) of section 76-861 with respect to the election of the executive board of an association, by all unit owners after the period of declarant control ends, and even if a master association is also an association described in section 76-859, the articles of incorporation or other instrument creating the master association and the declaration of each condominium the powers of which are assigned by the declaration or delegated to the master association may provide that the executive board of the master association must be elected after the period of declarant control in any of the following ways:

(1) All unit owners of all condominiums subject to the master association may elect all members of that executive board.

(2) All members of the executive boards of all condominiums subject to the master association may elect all members of that executive board.

(3) All unit owners of each condominium subject to the master association may elect specified members of that executive board.

(4) All members of the executive board of each condominium subject to the master association may elect specified members of that executive board.

Source:Laws 1983, LB 433, § 33; Laws 1984, LB 1105, § 6.


76-858. Merger or consolidation of condominiums; procedure.

(a) Any two or more condominiums, by agreement of the unit owners as provided in subsection (b) of this section, may be merged or consolidated into a single condominium. In the event of a merger or consolidation, unless the agreement otherwise provides, the resultant condominium is, for all purposes, the legal successor of all of the preexisting condominiums and the operations and activities of all associations of the preexisting condominiums shall be merged or consolidated into a single association which shall hold all powers, rights, obligations, assets, and liabilities of all preexisting associations.

(b) An agreement of two or more condominiums to merge or consolidate pursuant to subsection (a) of this section must be evidenced by an agreement prepared, executed, recorded, and certified by the president of the association of each of the preexisting condominiums following approval by owners of units to which are allocated the percentage of votes in each condominium required to terminate that condominium. Any such agreement must be recorded in every county in which a portion of the condominium is located and is not effective until recorded.

(c) Every merger or consolidation agreement must provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either (i) by stating the reallocations or the formulas upon which they are based or (ii) by stating the percentage of overall allocated interests of the new condominium which are allocated to all of the units comprising each of the preexisting condominiums, and providing that the portion of the percentages allocated to each unit formerly comprising a part of the preexisting condominium must be equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting condominium.

Source:Laws 1983, LB 433, § 34.


76-859. Unit owners association; organization.

A unit owners association must be organized no later than the date the first unit in the condominium is conveyed. The membership of the association at all times shall consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under section 76-855 or their heirs, successors, or assigns. The association shall be organized as a profit or nonprofit corporation or as an unincorporated association.

Source:Laws 1983, LB 433, § 35.


76-860. Unit owners association; powers.

(a) Except as provided in subsection (b) of this section and subject to the provisions of the declaration, the association, even if unincorporated, may:

(1) Adopt and amend bylaws and rules and regulations;

(2) Adopt and amend budgets for revenue, expenditures, and reserves and collect assessments for common expenses from unit owners;

(3) Hire and discharge managing agents and other employees, agents, and independent contractors;

(4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium;

(5) Make contracts and incur liabilities;

(6) Regulate the use, maintenance, repair, replacement, and modification of common elements;

(7) Cause additional improvements to be made as a part of the common elements;

(8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, but common elements may be conveyed or subjected to a security interest only pursuant to section 76-870;

(9) Grant easements, leases, licenses, and concessions through or over the common elements;

(10) Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements, other than limited common elements described in subdivisions (2) and (4) of section 76-839, and for services provided to unit owners;

(11) Impose charges for late payment of assessments and, after notice and opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations for the association;

(12) Impose reasonable charges for the preparation and recordation of amendments to the declaration, resale statements required by section 76-884, or statements of unpaid assessments;

(13) Provide for the indemnification of its officers and executive board and maintain directors' and officers' liability insurance;

(14) Assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly so provides;

(15) Exercise any other powers conferred by the declaration or bylaws;

(16) Exercise all other powers that may be exercised in this state by legal entities of the same type as the association; and

(17) Exercise any other powers necessary and proper for the governance and operation of the association.

(b) The declaration may not impose limitations on the power of the association to deal with the declarant which are more restrictive than the limitations imposed on the power of the association to deal with other persons.

Source:Laws 1983, LB 433, § 36; Laws 1984, LB 1105, § 7.


76-861. Executive board; members and officers; powers and duties.

(a) Except as provided in the declaration, the bylaws, subsection (b) of this section, or other provisions of sections 76-825 to 76-894, the executive board may act in all instances on behalf of the association. In the performance of their duties, the officers and members of the executive board are required to exercise ordinary and reasonable care.

(b) The executive board may not act on behalf of the association to amend the declaration pursuant to section 76-854, to terminate the condominium pursuant to section 76-855, or to elect members of the executive board or determine the qualifications, powers and duties, or terms of office of executive board members pursuant to subsection (f) of this section, but the executive board may fill vacancies in its membership for the unexpired portion of any term.

(c) Within thirty days after adoption of any proposed budget for the condominium, the executive board shall provide a summary of the budget to all the unit owners, and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary. Unless at that meeting a majority of all votes in the association or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.

(d) Subject to subsection (e) of this section, the declaration may provide for a period of declarant control of the association, during which period a declarant, or persons designated by him or her, may appoint and remove the officers and members of the executive board. Regardless of the period provided in the declaration, a period of declarant control terminates no later than the earlier of: (i) Sixty days after conveyance of ninety percent of the units which may be created to unit owners other than a declarant; or (ii) two years after all declarants have ceased to offer units for sale in the ordinary course of business. A declarant may voluntarily surrender the right to appoint and remove officers and members of the executive board before termination of that period, but in that event he or she may require, for the duration of the period of declarant control, that specified actions of the association or executive board, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective. Successor boards following declarant control may not discriminate nor act arbitrarily with respect to units still owned by a declarant or a successor declarant.

(e) Not later than sixty days after conveyance of twenty-five percent of the units which may be created to unit owners other than a declarant, at least one member and not less than twenty-five percent of the members of the executive board shall be elected exclusively by unit owners other than the declarant. Not later than sixty days after conveyance of fifty percent of the units which may be created to unit owners other than a declarant, not less than thirty-three and one-third percent of the members of the executive board shall be elected exclusively by unit owners other than the declarant.

(f) Not later than the termination of any period of declarant control, the unit owners shall elect an executive board of at least three members, at least a majority of whom must be unit owners. The executive board shall elect the officers. The executive board members and officers shall take office upon election.

(g) Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a two-thirds vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant.

Source:Laws 1983, LB 433, § 37.


76-862. Transfer of special declarant right; procedure; transferor; successor; liabilities.

(a) No special declarant right as defined in subsection (23) of section 76-827 created or reserved under sections 76-825 to 76-894 may be transferred except by an instrument evidencing the transfer recorded in every county in which any portion of the condominium is located. The instrument is not effective unless executed by the transferee.

(b) Upon transfer of any special declarant right, the liability of a transferor declarant is as follows:

(1) A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him or her by sections 76-825 to 76-894. Lack of privity does not deprive any unit owner of standing to maintain an action to enforce any obligation of the transferor.

(2) If a successor to any special declarant right is an affiliate of a declarant defined in subsection (1) of section 76-827, the transferor is jointly and severally liable with the successor for any obligations or liabilities of the successor relating to the condominium.

(3) If a transferor retains any special declarant right, but transfers other special declarant rights to a successor who is not an affiliate of the declarant, the transferor is liable for any obligations or liabilities imposed on a declarant by sections 76-825 to 76-894 or by the declaration relating to the retained special declarant rights and arising after the transfer.

(4) A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.

(c) Unless otherwise provided in a mortgage instrument or deed of trust, in case of foreclosure of a mortgage, tax sale, judicial sale, sale by a trustee under a deed of trust, or sale under bankruptcy code or receivership proceedings of any units owned by a declarant or real estate in a condominium subject to development rights, a person acquiring title to all the real estate being foreclosed or sold, but only upon his or her request, succeeds to all special declarant rights related to that real estate held by that declarant or only to any rights reserved in the declaration pursuant to section 76-852 and held by that declarant to maintain models, sales offices, and signs. The judgment or instrument conveying title shall provide for transfer of only the special declarant rights requested.

(d) Upon foreclosure sale, tax sale, sale by a trustee under a deed of trust, or sale under bankruptcy code or receivership proceedings of all units and other real estate in a condominium owned by a declarant:

(1) The declarant ceases to have any special declarant rights, and

(2) The period of declarant control as provided in subsection (d) of section 76-861 terminates unless the judgment or instrument conveying title provides for transfer of all special declarant rights held by that declarant to a successor declarant.

(e) The liabilities and obligations of a person who succeeds to special declarant rights are as follows:

(1) A successor to any special declarant right who is an affiliate of a declarant is subject to all obligations and liabilities imposed on the transferor by sections 76-825 to 76-894 or by the declaration.

(2) A successor to any special declarant right, other than a successor described in paragraphs (3) or (4) of this subsection who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed by sections 76-825 to 76-894 or the declaration:

(i) On a declarant which relates to his or her exercise or nonexercise of special declarant rights; or

(ii) On his or her transferor, other than:

(A) Misrepresentations by any previous declarant;

(B) Warranty obligations on improvements made by any previous declarant or made before the condominium was created;

(C) Breach of any obligation by any previous declarant or his or her appointees to the executive board; or

(D) Any liability or obligation imposed on the transferor as a result of the transferor's acts or omissions after the transfer.

(3) A successor to only a right reserved in the declaration to maintain models, sales offices, and signs pursuant to section 76-852, if he or she is not an affiliate of a declarant, may not exercise any other special declarant rights and is not subject to any liability or obligation as a declarant, except the obligation to provide a public-offering statement and any liability arising as a result thereof.

(4) A successor to all special declarant rights held by his or her transferor who is not an affiliate of that declarant and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to units under subsection (c) of this section may declare his or her intention in a recorded instrument to hold those rights solely for transfer to another person. Thereafter, until transferring all special declarant rights to any person acquiring title to any unit owned by the successor or until recording an instrument permitting exercise of all those rights, such successor may not exercise any of those rights other than a right held by his or her transferor to control the executive board in accordance with the provisions of subsection (d) of section 76-861 for the duration of any period of declarant control, and any attempted exercise of those rights is void. So long as a successor declarant may not exercise special declarant rights under this subsection, he or she is not subject to any liability or obligation as a declarant other than liability for his or her acts and omissions under subsection (d) of section 76-861.

(f) Nothing in this section subjects any successor to a special declarant right to any claims against or other obligations of a transferor declarant, other than claims and obligations arising under sections 76-825 to 76-894 or the declaration.

Source:Laws 1983, LB 433, § 38; Laws 1984, LB 1105, § 8.


76-863. Termination of contracts and leases of declarant.

If entered into before the executive board elected by the unit owners pursuant to subsection (f) of section 76-861 takes office, (i) any management contract, service contract, employment contract, or lease of recreational or parking areas or facilities or (ii) any other contract or lease between the association and a declarant or an affiliate of a declarant may be terminated without penalty at any time after the executive board elected by the unit owners pursuant to subsection (f) of section 76-861 takes office upon not less than one hundred eighty days' notice to the other party. This section does not apply to any lease the termination of which would terminate the condominium or reduce its size, unless the real estate subject to that lease was included in the condominium for the purpose of avoiding the right of the association to terminate a lease under this section. This section shall not apply to easements or licenses for the benefit of other property.

Source:Laws 1983, LB 433, § 39; Laws 1984, LB 1105, § 9.


76-864. Bylaws of association; contents.

(a) The bylaws of the association must provide for:

(1) The number of members of the executive board and the titles of the officers of the association;

(2) Election by the executive board of a president, treasurer, secretary, and any other officers of the association the bylaws specify;

(3) The qualifications, powers, duties, terms of office, and manner of electing and removing executive board members and officers and filling vacancies;

(4) Which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent;

(5) Which of its officers may prepare, execute, certify, and record amendments to the declaration on behalf of the association; and

(6) The method of amending the bylaws.

(b) Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.

Source:Laws 1983, LB 433, § 40.


76-865. Upkeep of condominium; duties.

(a) Except to the extent provided by the declaration, subsection (b) of this section, or subsection (h) of section 76-871, the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of his or her unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his or her unit reasonably necessary for those purposes. If damage is inflicted on the common elements, or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.

(b) In addition to the liability that a declarant as a unit owner has under sections 76-825 to 76-894, the declarant alone is liable for all expenses in connection with real estate subject to development rights. No other unit owner and no other portion of the condominium is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real estate subject to development rights inures to the declarant.

Source:Laws 1983, LB 433, § 41.


76-866. Association; meetings.

A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten nor more than fifty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand delivered or sent postage prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a director or officer.

Source:Laws 1983, LB 433, § 42; Laws 1984, LB 1105, § 10.


76-867. Quorums.

(a) Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast twenty percent of the votes which may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting.

(b) Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast fifty percent of the votes on that board are present at the beginning of the meeting.

Source:Laws 1983, LB 433, § 43.


76-868. Voting; proxies.

(a) If only one of the multiple owners of a unit is present at a meeting of the association, he or she is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the units.

(b) Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term.

(c) If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units; (i) the provisions of subsections (a) and (b) of this section apply to lessees as if they were unit owners; (ii) unit owners who have leased their units to other persons may not cast votes on those specified matters; and (iii) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners. Unit owners must also be given notice, in the manner provided in section 76-866, of all meetings at which lessees may be entitled to vote.

(d) No votes allocated to a unit owned by the association may be cast.

Source:Laws 1983, LB 433, § 44.


76-869. Tort and contract liability.

(a) Neither the association nor any unit owner except the declarant is liable for that declarant's torts in connection with any part of the condominium which that declarant has the responsibility to maintain. Otherwise, an action alleging a wrong done by the association must be brought against the association and not against any unit owner. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association is liable to the association or to any unit owner: (i) For all tort losses not covered by insurance suffered by the association or that unit owner, and (ii) for all costs which the association would not have incurred but for a breach of contract or other wrongful act or omission. Whenever the declarant is liable to the association under this section, the declarant is also liable for all litigation expenses, including reasonable attorney's fees, incurred by the association. Any statute of limitation affecting the association's right of action under this section is tolled until the period of declarant control terminates. A unit owner is not precluded from bringing an action contemplated by this section because he or she is a unit owner or a member or officer of the association. Liens resulting from judgments against the association are governed by section 76-875.

(b) The declarant shall not be liable for any action, loss, or cost pursuant to this section if at the time the loss occurred, insurance required by section 76-871 was in place.

Source:Laws 1983, LB 433, § 45.


76-870. Conveyance or encumbrance of common elements; procedure.

(a) Portions of the common elements may be conveyed or subjected to a security interest by the association if persons entitled to cast at least eighty percent of the votes in the association, including eighty percent of the votes allocated to units not owned by a declarant, or any larger percentage the declaration specifies, agree to that action; but all the owners of units to which any limited common element is allocated must agree in order to convey that limited common element or subject it to a security interest. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential uses. Proceeds of the sale are an asset of the association.

(b) An agreement to convey common elements or subject them to a security interest must be evidenced by the execution of an agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The agreement must specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof must be recorded in every county in which a portion of the condominium is situated and is effective only upon recordation.

(c) The association, on behalf of the unit owners, may contract to convey common elements or subject them to a security interest, but the contract is not enforceable against the association until approved pursuant to subsections (a) and (b) of this section. Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds or other instruments.

(d) Any purported conveyance, encumbrance, judicial sale, or other voluntary transfer of common elements, unless made pursuant to this section, is void.

(e) A conveyance or encumbrance of common elements pursuant to this section does not deprive any unit of its rights of access and support.

(f) Unless the declaration otherwise provides, a conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of preexisting encumbrances.

Source:Laws 1983, LB 433, § 46; Laws 1984, LB 1105, § 11.


76-871. Insurance; requirements.

(a) Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available:

(1) Property insurance on the property including the common elements insuring against all risks of direct physical loss commonly insured against or, in the case of a conversion building, against fire and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than eighty percent of the actual cash value of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; and

(2) Liability insurance, including medical payments insurance, in an amount determined by the executive board but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.

(b) In the case of a building containing units having horizontal boundaries described in the declaration, the insurance maintained under subdivision (a)(1) of this section, to the extent reasonably available, shall include the units, but need not include improvements and betterments installed by unit owners.

(c) If the insurance described in subsections (a) and (b) of this section, is not reasonably available, the association promptly shall cause notice of that fact to be hand delivered or sent prepaid by United States mail to all unit owners. The declaration may require the association to carry any other insurance, and the association in any event may carry any other insurance it deems appropriate to protect the association or the unit owners.

(d) Insurance policies carried pursuant to subsection (a) of this section must provide that:

(1) Each unit owner is an insured person under the policy with respect to liability arising out of his or her interest in the common elements or membership in the association;

(2) The insurer waives its right to subrogation under the policy against any unit owner or member of his or her household;

(3) No act or omission by any unit owner, unless acting within the scope of his or her authority on behalf of the association, will void the policy or be a condition to recovery under the policy; and

(4) If, at the time of a loss under the policy there is other insurance in the name of a unit owner covering the same risk covered by the policy, the association's policy provides primary insurance.

(e) Any loss covered by the property policy under subdivisions (a)(1) and (b) of this section must be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee or beneficiary under a deed of trust. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lienholders as their interests may appear. Subject to the provisions of subsection (h) of this section the proceeds must be disbursed first for the repair or restoration of the damaged property, and unit owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the condominium is terminated.

(f) An insurance policy issued to the association does not prevent a unit owner from obtaining insurance for his or her own benefit.

(g) An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, upon written request, to any unit owner, mortgagee, or beneficiary under a deed of trust. The insurer issuing the policy may not cancel or refuse to renew it until thirty days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each unit owner and each mortgagee or beneficiary under a deed of trust to whom a certificate or memorandum of insurance has been issued at their respective last-known addresses.

(h) Any portion of the condominium for which insurance is required under this section which is damaged or destroyed shall be repaired or replaced promptly by the association unless (i) the condominium is terminated, (ii) repair or replacement would be illegal under any state or local health or safety statute or ordinance, or (iii) eighty percent of the unit owners, including every owner of a unit or assigned limited common element which will not be rebuilt, vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire condominium is not repaired or replaced, (i) the insurance proceeds attributable to the damaged common elements must be used to restore the damaged area to a condition compatible with the remainder of the condominium, (ii) the insurance proceeds attributable to units and limited common elements which are not rebuilt must be distributed to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders, as their interests may appear, and (iii) the remainder of the proceeds must be distributed to all the unit owners or lienholders, as their interests may appear, in proportion to the common element interests of all the units. If the unit owners vote not to rebuild any unit, that unit's allocated interests are automatically reallocated upon the vote as if the unit had been condemned under subsection (a) of section 76-831, and the association promptly shall prepare, execute, and record an amendment to the declaration reflecting the reallocations. Notwithstanding the provisions of this subsection, section 76-855 governs the distribution of insurance proceeds if the condominium is terminated.

(i) The provisions of this section may be varied or waived in the case of a condominium all of whose units are restricted to nonresidential use.

Source:Laws 1983, LB 433, § 47.


76-872. Surplus funds; distribution.

Unless otherwise provided in the declaration, any surplus funds of the association remaining after payment of or provision for common expenses and any prepayment of reserves must be paid to the unit owners in proportion to their common expense liabilities or credited to them to reduce their future common expense assessments.

Source:Laws 1983, LB 433, § 48.


76-873. Assessment for common expenses.

(a) Until the association makes a common expense assessment, the declarant shall pay all common expenses. After any assessment has been made by the association, assessments must be made at least annually. After one-third of the members of the executive board are elected by unit owners other than the declarant, assessments shall be based on a budget adopted at least annually by the association.

(b) Except for assessment under subsections (c), (d), and (e) of this section, all common expenses must be assessed against all the units in accordance with the allocations set forth in the declaration pursuant to subsection (a) of section 76-844. Any past-due common expense assessment or installment thereof bears interest at the rate established by the association not exceeding eighteen percent per year.

(c) To the extent required by the declaration:

(1) Any common expense associated with the maintenance, repair, or replacement of a limited common element must be assessed against the units to which that limited common element is assigned, equally, or in any other proportion that the declaration provides;

(2) Any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefited; and

(3) The costs of insurance may at the discretion of the association be assessed in proportion to risk and, if reasonably determined, the costs of utilities not separately metered must be assessed in proportion to usage.

(d) Assessments to pay a judgment against the association pursuant to subsection (a) of section 76-875 may be made only against the units in the condominium at the time the judgment was entered, in proportion to their common expense liabilities.

(e) If any common expense is caused by the misconduct of any unit owner, the association may assess that expense exclusively against his or her unit.

(f) If common expense liabilities are reallocated, common expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated common expense liabilities.

Source:Laws 1983, LB 433, § 49.


76-874. Lien for assessments.

(a) The association has a lien on a unit for any assessment levied against that unit from the time the assessment becomes due and a notice containing the dollar amount of such lien is recorded in the office where mortgages are recorded. The association's lien may be foreclosed in like manner as a mortgage on real estate but the association shall give reasonable notice of its action to all lienholders of the unit whose interest would be affected. Unless the declaration otherwise provides, fees, charges, late charges, and interest charged pursuant to subdivisions (a)(10), (a)(11), and (a)(12) of section 76-860 are enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment may be a lien from the time the first installment thereof becomes due.

(b) A lien under this section is prior to all other liens and encumbrances on a unit except (i) liens and encumbrances recorded before the recordation of the declaration, (ii) a first mortgage or deed of trust on the unit recorded before the notice required under subsection (a) of this section has been recorded for a delinquent assessment for which enforcement is sought, and (iii) liens for real estate taxes and other governmental assessments or charges against the unit. The lien under this section is not subject to the homestead exemption pursuant to section 40-101.

(c) Unless the declaration otherwise provides, if two or more associations have liens for assessments created at any time on the same real estate, those liens have equal priority.

(d) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.

(e) This section does not prohibit actions to recover sums for which subsection (a) of this section creates a lien or prohibit an association from taking a deed in lieu of foreclosure.

(f) A judgment or decree in any action brought under this section must include costs and reasonable attorney's fees for the prevailing party.

(g) The association upon written request shall furnish to a unit owner a recordable statement setting forth the amount of unpaid assessments against his or her unit. The statement must be furnished within ten business days after receipt of the request and is binding on the association, the executive board, and every unit owner.

Source:Laws 1983, LB 433, § 50; Laws 1984, LB 1105, § 12; Laws 2013, LB442, § 5.    


76-874.01. Payments to escrow account; use.

(a) The association may require a person who purchases a unit on or after September 6, 2013, to make payments into an escrow account established by the association until the balance in the escrow account for that unit is in an amount not to exceed six months of assessments.

(b) All payments made under this section and received on or after September 6, 2013, shall be held in an interest-bearing checking account in a bank, savings bank, building and loan association, or savings and loan association in this state under terms that place these payments beyond the claim of creditors of the association. Upon request by a unit owner, an association shall disclose the name of the financial institution and the account number where the payments made under this section are being held. An association may maintain a single escrow account to hold payments made under this section from all of the unit owners. If a single escrow account is maintained, the association shall maintain separate accounting records for each unit owner.

(c) The payments made under this section may be used by the association to satisfy any assessments attributable to a unit owner for which assessment payments are delinquent. To the extent that the escrow deposit or any part thereof is applied to offset any unpaid assessments of a unit owner, the association may require such owner to replenish the escrow deposit.

(d) The association shall return the payments made under this section, together with any interest earned on such payments, to the unit owner when the owner sells the unit and has fully paid all assessments.

(e) Nothing in this section shall prohibit the association from establishing escrow deposit requirements in excess of the amounts authorized in this section pursuant to provisions in the association's declaration.

Source:Laws 2013, LB442, § 6.    


76-875. Liens affecting the condominium.

(a) Except as provided in subsection (b) of this section, a judgment for money against the association, if the transcript is properly filed, is not a lien on the common elements, but is a lien in favor of the judgment lienholder against all of the units in the condominium at the time the judgment was entered. No other property of a unit owner is subject to the claims of creditors of the association.

(b) If the association has granted a security interest in the common elements to a creditor of the association pursuant to section 76-870, the holder of that security interest shall exercise its right against the common elements before its judgment lien on any unit may be enforced.

(c) Whether perfected before or after the creation of the condominium, if a lien other than a deed of trust or mortgage, including a judgment lien or lien attributable to work performed or materials supplied before creation of the condominium, becomes effective against two or more units, the unit owner of an affected unit may pay to the lienholder the amount of the lien attributable to his or her unit, and the lienholder, upon receipt of payment, promptly shall deliver a release of the lien covering that unit. The amount of the payment must be proportionate to the ratio which that unit owner's common expense liability bears to the common expense liabilities of all unit owners whose units are subject to the lien. After payment, the association may not assess or have a lien against that unit owner's unit for any portion of the common expenses incurred in connection with that lien.

Source:Laws 1983, LB 433, § 51.


76-876. Association records.

The association shall keep financial records sufficiently detailed to enable the association to comply with section 76-884. All financial and other records of the association shall be made reasonably available for examination by any unit owner and his or her authorized agents.

Source:Laws 1983, LB 433, § 52.


76-877. Association as trustee.

With respect to a third person dealing with the association in the association's capacity as a trustee, the existence of trust powers and their proper exercise by the association may be assumed without inquiry. A third person is not bound to inquire whether the association has power to act as trustee or is properly exercising trust powers. A third person, without actual knowledge that the association is exceeding or improperly exercising its powers, is fully protected in dealing with the association as if it possessed and properly exercised the powers it purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the association in its capacity as trustee.

Source:Laws 1983, LB 433, § 53.


76-878. Applicability; waiver.

(a) Sections 76-878 to 76-894 apply to all units subject to sections 76-825 to 76-894, except as provided in subsection (b) of this section or as modified or waived by agreement of purchasers of units in a condominium in which all units are restricted to nonresidential use.

(b) Neither a public-offering statement nor a resale statement need be prepared or delivered in the case of:

(1) a gratuitous or testamentary disposition of a unit;

(2) a disposition pursuant to court order;

(3) a disposition by a government or governmental agency;

(4) a disposition by foreclosure or deed in lieu of foreclosure;

(5) a disposition to a person in the business of selling real estate who intends to offer those units to a purchaser;

(6) a disposition that may be canceled at any time and for any reason by the purchaser without penalty;

(7) a condominium composed of not more than twenty-five units which is not subject to any development rights to add units, and no power is reserved to a declarant to make the condominium part of a larger condominium, group of condominiums, or other real estate; or

(8) any condominium composed of units not intended for residential use.

Source:Laws 1983, LB 433, § 54; Laws 1984, LB 1105, § 13.


76-879. Public-offering statement; requirements.

(a) Except as provided in section 76-878 or subsection (b) of this section, a declarant, prior to the offering of any interest in a unit to the public, shall prepare a public-offering statement conforming to the requirements of sections 76-825 to 76-894.

(b) A declarant may transfer responsibility for preparation of all or a part of the public-offering statement to a successor declarant pursuant to section 76-862 or to a person in the business of selling real estate who intends to offer units in the condominium. In the event of any such transfer, the transferor shall provide the transferee with any information necessary to enable the transferee to fulfill the requirements of subsection (a) of this section.

(c) Any declarant or other person in the business of selling real estate who offers a unit to a purchaser shall deliver a public-offering statement in the manner prescribed in subsection (a) of section 76-883. The person responsible for preparing all or a part of the public-offering statement is liable for any materially false or intentionally misleading statement set forth therein or any failure to make disclosures required by sections 76-825 to 76-894 with respect to that portion of the public-offering statement which he or she prepared. If a declarant did not prepare any part of a public-offering statement that he or she delivers, he or she is not liable for its contents unless he or she had actual knowledge of the statement or omission or, in the exercise of reasonable care, should have known of the statement or omission. Nothing in sections 76-825 to 76-894 shall prohibit a condominium purchaser from waiving the preparation and delivery of a public-offering statement.

(d) If a unit is part of a condominium and is part of any other real estate regime in connection with the sale of which the delivery of a public-offering statement is required under the laws of this state, a single public-offering statement conforming to the requirements of sections 76-825 to 76-894 as those requirements relate to all real estate regimes in which the unit is located may be prepared and delivered in lieu of providing two or more public-offering statements.

Source:Laws 1983, LB 433, § 55; Laws 1984, LB 1105, § 14.


76-880. Public-offering statement; general provisions.

(a) A public-offering statement must contain or fully and accurately disclose:

(1) the name and principal address of the declarant and of the condominium;

(2) a general description of the condominium and the amenities the declarant anticipates including, to the extent possible, the types and number and the declarant's anticipated schedule of commencement and completion;

(3) the anticipated number of units in the condominium;

(4) a statement that copies of the declaration other than the plats and plans and any other recorded covenants, conditions, restrictions and reservations affecting the condominium, the bylaws, and any rules or regulations of the association, and copies of any contracts or leases that will or may be subject to cancellation by the association under section 76-863 are available for inspection at the principal office of the declarant or association;

(5) the amount of the current monthly assessment and the current operating budget, if any;

(6) a statement that the declarant may be paying expenses that may later be paid by the association;

(7) any initial or special fee due from the purchaser at closing;

(8) a statement that a copy of any insurance policy provided for the benefit of the unit owners is available from the association upon request; and

(9) any current fees or charges to be paid by unit owners for the use of the common elements and other facilities related to the condominium.

(b) If a declarant fails to provide a public-offering statement to a purchaser before conveying a unit, such purchaser may recover any actual damages sustained.

(c) A declarant shall amend the public-offering statement by an addendum not later than each January 1 it is in use to report any material change in the information required by this section.

Source:Laws 1983, LB 433, § 56; Laws 1984, LB 1105, § 15.


76-881. Public-offering statement; conversion building; information required.

(a) The public-offering statement of a condominium containing any conversion building must contain, in addition to the information required by section 76-880:

(1) a brief statement by an architect or a professional engineer describing the apparent condition of the structural components and mechanical and electrical installations material to the use and enjoyment of the building;

(2) a statement by the declarant of the age of each item reported on in paragraph (1) of this subsection or a statement that no representations are made in that regard; and

(3) a list of any outstanding notices of uncured violations of building codes or other municipal regulations of which the declarant is actually aware.

(b) This section applies only to buildings containing units that may be occupied for residential use.

Source:Laws 1983, LB 433, § 57; Laws 1984, LB 1105, § 16; Laws 1997, LB 622, § 114.


76-882. Public-offering statement filed with Securities and Exchange Commission; effect.

If an interest in a condominium is currently registered with the Securities and Exchange Commission of the United States, a declarant satisfies all requirements relating to the preparation of a public-offering statement of the Nebraska Condominium Act if he or she delivers to the purchaser a copy of the public-offering statement filed with the Securities and Exchange Commission. An interest in a condominium is not a security under the Securities Act of Nebraska.

Source:Laws 1983, LB 433, § 58; Laws 2002, LB 857, § 5.    


Cross References

76-883. Delivery of public-offering statement; purchaser's rights.

(a) A person required to deliver a public-offering statement pursuant to subsection (c) of section 76-879 shall provide a purchaser of a unit with a copy of the public-offering statement and all amendments thereto before conveyance of that unit and not later than the date of any contract of sale. Unless a purchaser is given the public-offering statement more than fifteen days before execution of a contract for the purchase of a unit, the purchaser, before conveyance, may cancel the contract within fifteen days after first receiving the public-offering statement.

(b) After receiving the public-offering statement and all amendments, a purchaser has the right to have an independent inspection of the building's structure and mechanical systems conducted at the purchaser's expense.

(c) If a purchaser elects to cancel a contract pursuant to subsection (a) of this section, he or she may do so by hand-delivering notice thereof to the offeror or by mailing notice thereof by mail postage prepaid to the offeror or to his or her agent for service of process. Cancellation is without penalty, and all payments made by the purchaser before cancellation shall be refunded promptly.

(d) If a person required to deliver a public-offering statement pursuant to subsection (c) of section 76-879 fails to provide a purchaser to whom a unit is conveyed with that public-offering statement and all amendments thereto as required by subsection (a) of this section, the purchaser is entitled to receive damages and other relief from that person.

Source:Laws 1983, LB 433, § 59; Laws 1984, LB 1105, § 17; Laws 1993, LB 478, § 16; Laws 2006, LB 924, § 3.    


76-884. Resale of unit; information required.

(a) Except in the case of a sale where delivery of a public-offering statement is required or unless exempt under subsection (b) of section 76-878, the unit owner and any other person in the business of selling real estate who offers a unit to a purchaser shall furnish to a purchaser before conveyance a copy of the declaration other than the plats and plans, the bylaws, the rules or regulations of the association, and the following information:

(1) a statement setting forth the amount of the monthly common expense assessment and any unpaid common expense or special assessment currently due and payable from the selling unit owner;

(2) any other fees payable by unit owners;

(3) the most recent regularly prepared balance sheet and income and expense statement, if any, of the association;

(4) the current operating budget of the association, if any;

(5) a statement that a copy of any insurance policy provided for the benefit of unit owners is available from the association upon request; and

(6) a statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof.

(b) The association, within ten days after a request by a unit owner, shall furnish in writing the information necessary to enable the unit owner to comply with this section. A unit owner providing information pursuant to subsection (a) of this section is not liable to the purchaser for any erroneous information provided by the association and included in the certificate.

(c) A purchaser is not liable for any unpaid assessment or fee greater than the amount set forth in the information prepared by the association. The unit owner or any other person in the business of selling real estate who offers a unit to a purchaser is not liable to a purchaser for the failure or delay of the association to provide such information in a timely manner.

Source:Laws 1983, LB 433, § 60; Laws 1984, LB 1105, § 18.


76-885. Sale or conveyance of unit; release of liens.

(a) In the case of a sale of a unit where delivery of a public-offering statement is required pursuant to subsection (c) of section 76-879, a seller shall, before conveying a unit, record or furnish to the purchaser, releases of all liens affecting that unit and its common element interest which the purchaser does not expressly agree to take subject to or assume. This subsection does not apply to any real estate which a declarant has the right to withdraw.

(b) Before conveying real estate to the association the declarant shall have that real estate released from: (1) all liens the foreclosure of which would deprive unit owners of any right of access to or easement of support of their units, and (2) all other liens on that real estate unless the public-offering statement describes certain real estate which may be conveyed subject to liens in specified amounts.

Source:Laws 1983, LB 433, § 61.


76-886. Conversion buildings; rights of tenants.

(a) A declarant of a condominium containing conversion buildings, and any person in the business of selling real estate for his or her own account who intends to offer units in such a condominium shall give each of the residential tenants and any residential subtenant in possession of a portion of a conversion building notice of the conversion and provide those persons with the public-offering statement, if any, no later than sixty days before the tenants and any subtenant in possession are required to vacate. The notice must set forth generally the rights of tenants and subtenants under this section and shall be hand delivered to the unit or mailed by prepaid United States mail to the tenant and subtenant at the address of the unit or any other mailing address provided by a tenant. No tenant or subtenant may be required to vacate upon less than sixty days' notice, except by reason of nonpayment of rent, waste, or conduct that disturbs other tenants' peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during that period. Failure to give notice as required by this section is a defense to an action for possession.

(b) For sixty days after delivery or mailing of the notice described in subsection (a), the person required to give the notice may offer to convey each unit or proposed unit occupied for residential use to the tenant who leases that unit. If such an offer is made and the tenant fails to purchase the unit during the sixty-day period, the offeror may not offer to dispose of an interest in that unit during the following thirty days at a price or on terms more favorable to the offeree than the price or terms offered to the tenant. This subsection does not apply to any unit in a conversion building if that unit will be restricted exclusively to nonresidential use or the boundaries of the converted unit do not substantially conform to the dimensions of the residential unit before conversion.

(c) If a seller, in violation of subsection (b) of this section, conveys a unit to a purchaser for value who has no knowledge of the violation, recordation of the deed conveying the unit extinguishes any right a tenant may have under subsection (b) of this section to purchase that unit if the deed states that the seller has complied with subsection (b) of this section, but does not affect the right of a tenant to recover damages from the seller for a violation of subsection (b) of this section.

(d) If a notice of conversion specifies a date by which a unit or proposed unit must be vacated the notice shall constitute a notice to vacate.

(e) Nothing in this section permits termination of a lease by a declarant in violation of its terms.

(f) Any tenant may waive any provision of this section by a written instrument executed after the date of notice.

Source:Laws 1983, LB 433, § 62.


76-887. Express warranties; creation.

Express warranties made by any seller to a purchaser of a unit, if relied upon by the purchaser, are created as follows:

(a) any written affirmation of fact or written promise which relates to the unit, its use, or rights appurtenant thereto, area improvements to the condominium that would directly benefit the unit, or the right to use or have the benefit of facilities not located in the condominium creates an express warranty that the unit and related rights and uses will conform to the affirmation or promise;

(b) any written description of the physical characteristics of the condominium or model of amenities, including plans and specifications of or for improvements, creates an express warranty that the condominium will conform to the model or description;

(c) any written description of the quantity or extent of the real estate comprising the condominium, included in the plats or surveys, creates an express warranty that the condominium will conform to the description, subject to customary tolerances; and

(d) a provision that a buyer may put a unit only to a specified use is an express warranty that the specified use is lawful at the time of conveyance.

A statement purporting to be merely an opinion or commendation of the real estate or its value does not create a warranty.

Source:Laws 1983, LB 433, § 63; Laws 1984, LB 1105, § 19.


76-888. Implied warranties of quality.

A declarant and any person in the business of selling real estate for his or her own account warrants that a unit will be in at least as good condition at the earlier of the time of the conveyance or delivery of possession as it was at the time of contracting, reasonable wear and tear excepted.

Source:Laws 1983, LB 433, § 64; Laws 1984, LB 1105, § 20.


76-889. Repealed. Laws 1984, LB 1105, § 23.

76-890. Warranties; statute of limitations.

(a) A judicial proceeding for breach of any obligation arising under section 76-887 or 76-888 must be commenced within four years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than two years. With respect to a unit that may be occupied for residential use, an agreement to reduce the period of limitation must be evidenced by an instrument executed by the purchaser.

(b) Subject to subsection (c) of this section, a cause of action for breach of warranty, regardless of the purchaser's lack of knowledge of the breach, accrues:

(1) as to a unit, at the time the purchaser to whom the warranty is first made enters into possession if a possessory interest was conveyed or at the time of acceptance of the instrument of conveyance if a nonpossessory interest was conveyed; and

(2) as to each common element, at the time the common element is completed or, if later, (i) as to a common element that may be added to the condominium or portion thereof, at the time the first unit therein is conveyed to a bona fide purchaser, or (ii) as to a common element within any other portion of the condominium, at the time the first unit in the condominium is conveyed to a bona fide purchaser.

(c) If a warranty explicitly extends to future performance or duration of any improvement or component of the condominium, the cause of action accrues at the time the breach is discovered or at the end of the period for which the warranty explicitly extends, whichever is earlier.

Source:Laws 1983, LB 433, § 66; Laws 1984, LB 1105, § 21.


76-891. Repealed. Laws 1993, LB 478, § 18.

76-891.01. Effect of violations on rights of action; attorney's fees.

If a declarant or any other person subject to the Nebraska Condominium Act fails to comply with any provision of the act or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. The court, in an appropriate case, may award costs and reasonable attorney's fees.

Source:Laws 1993, LB 478, § 17.


76-892. Labeling of promotional material.

Promotional material may be displayed or delivered to prospective purchasers which display amenities provided they are labeled: (a) Must Be Built or (b) Need Not Be Built.

Source:Laws 1983, LB 433, § 68.


76-893. Declarant; liability for repair and restoration.

The declarant is subject to liability for the prompt repair and restoration, to a condition compatible with the remainder of the condominium, of any portion of the condominium affected by the exercise of rights reserved pursuant to or created by sections 76-847 to 76-850, 76-852, and 76-853.

Source:Laws 1983, LB 433, § 69.


76-894. Conveyance of unit; when authorized.

In the case of a sale of a unit where delivery of a public-offering statement is required, a contract of sale may be executed, but no interest in that unit may be conveyed, until the declaration is recorded and the unit is substantially completed, as evidenced by a recorded certificate of substantial completion executed by an architect, a surveyor, or a professional engineer, or by issuance of a certificate of occupancy authorized by law.

Source:Laws 1983, LB 433, § 70; Laws 1997, LB 622, § 115.


76-901. Tax on grantor; rate.

There is hereby imposed a tax on the grantor executing the deed as defined in section 76-203 upon the transfer of a beneficial interest in or legal title to real estate at the rate of two dollars and twenty-five cents for each one thousand dollars value or fraction thereof. For purposes of sections 76-901 to 76-908, value means (1) in the case of any deed, not a gift, the amount of the full actual consideration thereof, paid or to be paid, including the amount of any lien or liens assumed, and (2) in the case of a gift or any deed with nominal consideration or without stated consideration, the current market value of the property transferred. Such tax shall be evidenced by stamps to be attached to the deed. All deeds purporting to transfer legal title or beneficial interest shall be presumed taxable unless it clearly appears on the face of the deed or sufficient documentary proof is presented to the register of deeds that the instrument is exempt under section 76-902.

Source:Laws 1965, c. 463, § 1, p. 1472; Laws 1969, c. 618, § 1, p. 2505; Laws 1983, LB 194, § 1; Laws 1985, LB 236, § 1; Laws 1992, LB 1192, § 9; Laws 2005, LB 40, § 6.    


76-902. Tax; exemptions.

The tax imposed by section 76-901 shall not apply to:

(1) Deeds recorded prior to November 18, 1965;

(2) Deeds to property transferred by or to the United States of America, the State of Nebraska, or any of their agencies or political subdivisions;

(3) Deeds which secure or release a debt or other obligation;

(4) Deeds which, without additional consideration, confirm, correct, modify, or supplement a deed previously recorded but which do not extend or limit existing title or interest;

(5)(a) Deeds between spouses, between ex-spouses for the purpose of conveying any rights to property acquired or held during the marriage, or between parent and child, without actual consideration therefor, and (b) deeds to or from a family corporation, partnership, or limited liability company when all the shares of stock of the corporation or interest in the partnership or limited liability company are owned by members of a family, or a trust created for the benefit of a member of that family, related to one another within the fourth degree of kindred according to the rules of civil law, and their spouses, for no consideration other than the issuance of stock of the corporation or interest in the partnership or limited liability company to such family members or the return of the stock to the corporation in partial or complete liquidation of the corporation or deeds in dissolution of the interest in the partnership or limited liability company. In order to qualify for the exemption for family corporations, partnerships, or limited liability companies, the property shall be transferred in the name of the corporation or partnership and not in the name of the individual shareholders, partners, or members;

(6) Tax deeds;

(7) Deeds of partition;

(8) Deeds made pursuant to mergers, consolidations, sales, or transfers of the assets of corporations pursuant to plans of merger or consolidation filed with the office of Secretary of State. A copy of such plan filed with the Secretary of State shall be presented to the register of deeds before such exemption is granted;

(9) Deeds made by a subsidiary corporation to its parent corporation for no consideration other than the cancellation or surrender of the subsidiary's stock;

(10) Cemetery deeds;

(11) Mineral deeds;

(12) Deeds executed pursuant to court decrees;

(13) Land contracts;

(14) Deeds which release a reversionary interest, a condition subsequent or precedent, a restriction, or any other contingent interest;

(15) Deeds of distribution executed by a personal representative conveying to devisees or heirs property passing by testate or intestate succession;

(16) Transfer on death deeds or revocations of transfer on death deeds;

(17) Certified or authenticated death certificates;

(18) Deeds transferring property located within the boundaries of an Indian reservation if the grantor or grantee is a reservation Indian;

(19) Deeds transferring property into a trust if the transfer of the same property would be exempt if the transfer was made directly from the grantor to the beneficiary or beneficiaries under the trust. No such exemption shall be granted unless the register of deeds is presented with a signed statement certifying that the transfer of the property is made under such circumstances as to come within one of the exemptions specified in this section and that evidence supporting the exemption is maintained by the person signing the statement and is available for inspection by the Department of Revenue;

(20) Deeds transferring property from a trustee to a beneficiary of a trust;

(21) Deeds which convey property held in the name of any partnership or limited liability company not subject to subdivision (5) of this section to any partner in the partnership or member of the limited liability company or to his or her spouse;

(22) Leases;

(23) Easements;

(24) Deeds which transfer title from a trustee to a beneficiary pursuant to a power of sale exercised by a trustee under a trust deed; or

(25) Deeds transferring property, without actual consideration therefor, to a nonprofit organization that is exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code and is not a private foundation as defined in section 509(a) of the Internal Revenue Code.

Source:Laws 1965, c. 463, § 2, p. 1473; Laws 1969, c. 619, § 1, p. 2506; Laws 1969, c. 620, § 1, p. 2507; Laws 1971, LB 825, § 1; Laws 1974, LB 610, § 1; Laws 1978, LB 815, § 1; Laws 1980, LB 650, § 1; Laws 1983, LB 194, § 2; Laws 1984, LB 795, § 1; Laws 1984, LB 1105, § 23; Laws 1991, LB 193, § 1; Laws 1993, LB 121, § 481; Laws 2001, LB 516, § 5;    Laws 2012, LB536, § 35;    Laws 2013, LB36, § 1;    Laws 2014, LB867, § 7.    


76-903. Design; collection of tax; refund; procedure; disbursement.

The Tax Commissioner shall design such stamps in such denominations as in his or her judgment will be the most advantageous to all persons concerned. When any deed subject to the tax imposed by section 76-901 is offered for recordation, the register of deeds shall ascertain and compute the amount of the tax due thereon and shall collect such amount as a prerequisite to acceptance of the deed for recordation. If a dispute arises concerning the taxability of the transfer, the register of deeds shall not record the deed until the disputed tax is paid. If a disputed tax has been paid, the taxpayer may file for a refund pursuant to section 76-908. The taxpayer may also seek a declaratory ruling pursuant to rules and regulations adopted and promulgated by the Department of Revenue. From each two dollars and twenty-five cents of tax collected pursuant to section 76-901, the register of deeds shall retain fifty cents to be placed in the county general fund and shall remit the balance to the State Treasurer who shall credit ninety-five cents of such amount to the Affordable Housing Trust Fund, twenty-five cents of such amount to the Site and Building Development Fund, twenty-five cents of such amount to the Homeless Shelter Assistance Trust Fund, and thirty cents of such amount to the Behavioral Health Services Fund.

Source:Laws 1965, c. 463, § 3, p. 1473; Laws 1969, c. 618, § 2, p. 2505; Laws 1983, LB 194, § 3; Laws 1985, LB 236, § 2; Laws 1992, LB 1192, § 10; Laws 1997, LB 864, § 16; Laws 2001, LB 516, § 6;    Laws 2001, Spec. Sess., LB 3, § 5; Laws 2005, LB 40, § 7;    Laws 2011, LB388, § 14.    


76-904. Deeds; filing without stamps; prohibited; removal of stamps from deed; prohibited.

The register of deeds shall accept no deeds, instruments, or writings for conveyance of any lands, tenements, or other realty sold unless the stamps as are provided for in section 76-901 are attached and canceled. The stamps shall not be subsequently removed from the deed.

Source:Laws 1965, c. 463, § 4, p. 1474.


76-905. Register of deeds; recording deed with insufficient tax paid; penalty.

Any register of deeds who shall record any deed upon which a tax is imposed by the provisions of sections 76-901 to 76-907 without collecting the proper amount of tax as required by the provisions of sections 76-901 to 76-907 as is indicated in the declaration appended to such deed shall, upon conviction thereof, be fined the sum of fifty dollars.

Source:Laws 1965, c. 463, § 5, p. 1474.


76-906. Rules and regulations.

The Tax Commissioner shall prescribe such rules and regulations as he may deem necessary to carry out the purposes of sections 76-901 to 76-907.

Source:Laws 1965, c. 463, § 6, p. 1474.


76-907. Sections; operative date.

Sections 76-901 to 76-907 shall become operative on January 1, 1966, or immediately upon the repeal of the federal stamp act on deeds of conveyance of real estate whichever is later. If the repeal of the stamp tax levied by the federal government is conditional upon the levy of a comparable tax by the state, then sections 76-901 to 76-907 shall become operative on the first day of the third month following the adoption of such a law by the federal government. The month in which the federal act is adopted shall be counted as the first month in determining the operative date of sections 76-901 to 76-907.

Source:Laws 1965, c. 463, § 7, p. 1474.


76-908. Documentary stamp tax; refund; procedure.

Any person paying the documentary stamp tax imposed by section 76-901 may claim a refund if the payment of such tax was (1) the result of a misunderstanding or honest mistake of the taxpayer, (2) the result of a clerical error on the part of the register of deeds or the taxpayer, or (3) invalid for any reason. Within two years after payment of such tax, the taxpayer shall file in the office of the register of deeds of the county in which the tax was paid a written claim on a form prescribed by the Tax Commissioner and evidence in support thereof, stating the reason for the claim. The register of deeds shall, within thirty days after such filing, make a recommendation of approval or denial and forward the recommendation together with a copy of the claim and evidence filed to the Tax Commissioner. Within thirty days after the forwarding of such recommendation the Tax Commissioner shall, upon consideration of the recommendation of the register of deeds and the claim and evidence filed by the taxpayer, render his or her decision approving or rejecting the claim for a refund in whole or in part. A copy of the decision of the Tax Commissioner shall be mailed to the register of deeds and to the last-known address of the taxpayer within ten days after the decision is rendered. Upon approval by the Tax Commissioner of a refund for all or a portion of the documentary stamp tax paid, the register of deeds is authorized to make such refund from the currently collected documentary stamp tax funds presently in the office of the register of deeds. A taxpayer denied a refund under this section, in whole or in part, may appeal the decision of the Tax Commissioner, and the appeal shall be in accordance with the Administrative Procedure Act.

Source:Laws 1981, LB 179, § 2; Laws 1988, LB 352, § 148; Laws 2012, LB727, § 27.    


Cross References

76-1001. Terms, defined.

As used in sections 76-1001 to 76-1018, unless the context otherwise requires:

(1) Beneficiary shall mean the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest;

(2) Trustor shall mean the person conveying real property by a trust deed as security for the performance of an obligation;

(3) Trust deed shall mean a deed executed in conformity with sections 76-1001 to 76-1018 and conveying real property to a trustee in a trust to secure the performance of an obligation of the grantor or other person named in the deed to a beneficiary;

(4) Trustee shall mean a person to whom title to real property is conveyed by trust deed, or his successor in interest;

(5) Real property shall mean any estate or interest in land, including all buildings, fixtures and improvements thereon and all rights-of-way, easements, rents, issues, profits, income, tenements, hereditaments, privileges and appurtenances thereunto belonging, used or enjoyed with said land, or any part thereof; and

(6) Trust property shall mean the real property conveyed by the trust deed.

Source:Laws 1965, c. 451, § 1, p. 1423.


76-1002. Transfers in trust; real property; purpose.

(1) Transfers in trust of real property may be made to secure (a) existing debts or obligations, (b) debts or obligations created simultaneously with the execution of the trust deed, (c) future advances necessary to protect the security, even though such future advances cause the total indebtedness to exceed the maximum amount stated in the trust deed, (d) any future advances to be made at the option of the parties in any amount unless, except as otherwise provided under subsection (2) or (3) of this section, a maximum amount of total indebtedness to be secured is stated in the trust deed, or (e) the performance of an obligation of any other person named in the trust deed to a beneficiary.

(2) Future advances necessary to protect the security shall include, but not be limited to, advances for payment of real property taxes, special assessments, prior liens, hazard insurance premiums, maintenance charges imposed under a condominium declaration or other covenant, and costs of repair, maintenance, or improvements. Future advances necessary to protect the security are secured by the trust deed and shall have the priority specified in subsection (3) of this section.

(3)(a) Except as provided in subdivision (b) of this subsection, all items identified in subsection (1) of this section are equally secured by the trust deed from the time of filing the trust deed as provided by law and have the same priority as the trust deed over the rights of all other persons who acquire any rights in or liens upon the trust property subsequent to the time the trust deed was filed.

(b)(i) The trustor or his or her successor in title may limit the amount of optional future advances secured by the trust deed under subdivision (1)(d) of this section by filing a notice for record in the office of the register of deeds of each county in which the trust property or some part thereof is situated. A copy of such notice shall be sent by certified mail to the beneficiary at the address of the beneficiary set forth in the trust deed or, if the trust deed has been assigned, to the address of the most recent assignee reflected in a recorded assignment of the trust deed. The amount of such secured optional future advances shall be limited to not less than the amount actually advanced at the time of receipt of such notice by the beneficiary.

(ii) If any optional future advance is made by the beneficiary to the trustor or his or her successor in title after receiving written notice of the filing for record of any trust deed, mortgage, lien, or claim against such trust property, then the amount of such optional future advance shall be junior to such trust deed, mortgage, lien, or claim. The notice under this subdivision shall be sent by certified mail to the beneficiary at the address of the beneficiary set forth in the trust deed or, if the trust deed has been assigned, to the address of the most recent assignee reflected in a recorded assignment of the trust deed.

(iii) Subdivisions (b)(i) and (ii) of this subsection shall not limit or determine the priority of optional future advances as against construction liens governed by section 52-139.

(4) The reduction to zero or elimination of the obligation evidenced by any of the transfers in trust authorized by this section shall not invalidate the operation of this section as to any future advances unless a notice or release to the contrary is filed for record as provided by law. All right, title, interest, and claim in and to the trust property acquired by the trustor or his or her successors in interest subsequent to the execution of the trust deed shall inure to the trustee as security for the obligation or obligations for which the trust property is conveyed in like manner as if acquired before execution of the trust deed.

Source:Laws 1965, c. 451, § 2, p. 1424; Laws 1984, LB 679, § 17; Laws 1988, LB 984, § 1; Laws 1999, LB 277, § 1;    Laws 2002, LB 876, § 80;    Laws 2002, LB 957, § 31;    Laws 2011, LB43, § 1;    Laws 2014, LB788, § 11.    


76-1003. Trustee; qualification.

(1) The trustee of a trust deed shall be:

(a) A member of the Nebraska State Bar Association or a licensed real estate broker of Nebraska;

(b) Any bank, building and loan association, savings and loan association, or credit union authorized to do business in Nebraska under the laws of Nebraska or the United States or an agency of the United States Department of Agriculture involved in lending;

(c) Any corporation authorized to conduct a trust business in Nebraska under the laws of Nebraska or the United States; or

(d) Any title insurer authorized to do business in Nebraska under the laws of Nebraska.

(2) The trustee of a trust deed shall not be the beneficiary named in the trust deed unless the beneficiary is qualified to be a trustee under subdivision (1)(b) or (c) of this section.

Source:Laws 1965, c. 451, § 3, p. 1424; Laws 1991, LB 235, § 58; Laws 1992, LB 641, § 4; Laws 1999, LB 682, § 1.    


76-1004. Successor trustee; appointment by beneficiary; effect; substitution of trustee; recording; form.

(1) The beneficiary may appoint a successor trustee at any time by filing for record in the office of the register of deeds of each county in which the trust property or some part thereof is situated a substitution of trustee. From the time the substitution is filed for record, the new trustee shall succeed to all the power, duties, authority, and title of the trustee named in the deed of trust and of any successor trustee.

(2) The substitution shall identify the trust deed by stating the names of the original parties thereto, the date of recordation, the full legal description of the realty affected, and the book and page or computer system reference where the trust deed is recorded, shall state the name of the new trustee, and shall be executed and acknowledged by all of the beneficiaries under the trust deed or their successors in interest.

(3) The recorded substitution shall also contain or have attached to it an affidavit that a copy of the substitution has, by regular United States mail with postage prepaid, been mailed to the last-known address of the trustee being replaced or an affidavit of personal service of a copy thereof or of publication of notice thereof, which notice shall be published one time in a newspaper having general circulation in any county in which the trust property or some part thereof is situated.

(4) Any affidavit contained in or attached to the substitution shall constitute prima facie evidence of the facts required to be stated and conclusive evidence of such facts as to bona fide purchasers and encumbrancers for value of the trust property or of any beneficial interest in the trust deed.

(5) On and after April 3, 1997, no recorded substitution filed for record shall be required to contain or have attached to it an affidavit pursuant to subsection (3) of this section, and any recorded substitution filed for record without containing or having attached to it an affidavit pursuant to such subsection prior to April 3, 1997, shall not be deemed incomplete or defective because such affidavit was not contained therein or attached.

(6) On and after March 4, 2010, there shall be no requirement for a beneficiary, in connection with the recording of the substitution of trustee, to provide notice of the substitution by mail, personal service, publication, or in any other manner to the trustee being replaced, and any recorded substitution filed for record prior to March 4, 2010, without having provided such notice, shall not be deemed incomplete or defective because such notice was not provided.

(7) A substitution of trustee shall be sufficient if made in substantially the following form:

Substitution of Trustee

(insert name and address of new trustee)

is hereby appointed successor trustee under the trust deed executed by ............... as trustor, in which .............. is named beneficiary and ............... as trustee, and filed for record ........, 20...., and recorded in book ......, page ........ (or computer system reference ........), Records of ......... County, Nebraska. The trust property affected is legally described as follows:

..................................................................

..................................................................

..................................................................

..................................................................

Signature ........................

Source:Laws 1965, c. 451, § 4, p. 1424; Laws 1984, LB 679, § 18; Laws 1989, LB 334, § 1; Laws 1993, LB 547, § 1; Laws 1995, LB 288, § 2; Laws 1997, LB 284, § 1; Laws 2004, LB 813, § 28;    Laws 2010, LB738, § 1.    


76-1005. Power of sale conferred on trustee.

A power of sale may be conferred upon the trustee which the trustee may exercise and under which the trust property may be sold in the manner provided in the Nebraska Trust Deeds Act after a breach of an obligation for which the trust property is conveyed as security, or at the option of the beneficiary a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property. The power of sale shall be expressly provided for in the trust deed.

Source:Laws 1965, c. 451, § 5, p. 1426; Laws 1984, LB 679, § 19; Laws 1993, LB 547, § 2.


Annotations

76-1006. Sale of trust property; notice of default; trustee or attorney for trustee; designate person to receive notices; when.

(1) The power of sale conferred in the Nebraska Trust Deeds Act upon the trustee shall not be exercised until:

(a) The trustee or the attorney for the trustee shall first file for record in the office of the register of deeds of each county wherein the trust property or some part or parcel thereof is situated a notice of default identifying the trust deed by stating the name of the trustor named therein and giving the book and page or computer system reference where the same is recorded and a description of the trust property, containing a statement that a breach of an obligation for which the trust property was conveyed as security has occurred, and setting forth the nature of such breach and of his or her election to sell or cause to be sold such property to satisfy the obligation;

(b) If the trust property is used in farming operations carried on by the trustor, not in any incorporated city or village, the notice of default also sets forth:

(i) A statement that the default may be cured within two months of the filing for record of the notice of default and the obligation and trust deed may be thereby reinstated as provided in section 76-1012;

(ii) A statement of the amount of the entire unpaid principal sum secured by the trust deed, the amount of interest accrued thereon to and including the date the notice of default is signed by the trustee or the trustee's attorney, and the dollar amount of the per diem interest accruing from and after such date; and

(iii) A statement of the amount of the unpaid principal which would not then be due had no default occurred; and

(c) After the lapse of not less than one month, or two months if the notice of default is subject to subdivision (1)(b)(i) of this section, the trustee or the attorney for the trustee shall give notice of sale as provided in section 76-1007.

(2) Subsequent to the filing of a notice of default pursuant to this section, the trustee or the attorney for the trustee, within five business days after receipt of a written request by a designated representative of the incorporated city or village having jurisdiction of the trust property, shall provide the name and address of a person designated by the beneficiary of the trust deed to accept notices of violations of ordinances by the owner of the trust property on behalf of the beneficiary. Failure to provide the name and address required under this subsection shall not void, invalidate, or affect in any way a notice of default filed under this section. This subsection does not impose upon the beneficiary, trustee, or the attorney for the trustee a duty to maintain the trust property. The designation of a representative to receive notices shall terminate upon transfer of fee title ownership to the trust property.

Source:Laws 1965, c. 451, § 6, p. 1426; Laws 1971, LB 645, § 1; Laws 1984, LB 679, § 20; Laws 1986, Third Spec. Sess., LB 3, § 17; Laws 2004, LB 999, § 44;    Laws 2006, LB 876, § 52;    Laws 2015, LB151, § 2.    


Annotations

76-1007. Sale of trust property; notice; contents; time; place of sale.

(1) The trustee or the attorney for the trustee shall give written notice of the time and place of sale particularly describing the property to be sold by publication of such notice, at least five times, once a week for five consecutive weeks, the last publication to be at least ten days but not more than thirty days prior to the sale, in some newspaper having a general circulation in each county in which the property to be sold, or some part thereof, is situated.

(2) The sale shall be held at the time and place designated in the notice of sale which shall be between the hours of nine a.m. and five p.m. and at the premises or at the courthouse of the county in which the property to be sold, or some part thereof, is situated.

(3) The notice of sale shall be sufficient if made in substantially the following form:

Notice of Trustee's Sale

The following described property will be sold at public auction to the highest bidder at the .......... door of the county courthouse in .............., County of ............, Nebraska, on ........., 20.... .

(Name of Trustee) .......................................

Source:Laws 1965, c. 451, § 7, p. 1426; Laws 2004, LB 813, § 29;    Laws 2006, LB 876, § 53.    


76-1008. Notice of default and sale; request for copies; mailing of notice; publication of notice of default; when.

(1) Any person desiring a copy of any notice of default and of any notice of sale under any trust deed may, at any time subsequent to the filing for record of the trust deed and prior to the filing for record of a notice of default thereunder, file for record in the office of the register of deeds of any county in which any part or parcel of the trust property is situated a duly acknowledged request for a copy of any such notice of default and notice of sale. The request shall set forth the name and address of the person or persons requesting copies of such notices and shall identify the trust deed by stating the names of the original parties thereto, the date of filing for record thereof, and the book and page or computer system reference where the same is recorded and shall be in substantially the following form:

Request is hereby made that a copy of any notice of default and a copy of notice of sale under the trust deed filed for record ............, 20...., and recorded in book .........., page ........, (or computer system reference ........) Records of ............. County, Nebraska, executed by .......... as trustor, in which ............ is named as beneficiary and ............ as trustee, be mailed to .......(insert name)....... at ..........(insert address).......... .

Signature ..........................

(2) Not later than ten days after recordation of such notice of default, the trustee or beneficiary or the attorney for the trustee or beneficiary shall mail, by registered or certified mail with postage prepaid, a copy of such notice with the recording date shown thereon, addressed to each person whose name and address is set forth in a request therefor which has been recorded prior to the filing for record of the notice of default, directed to the address designated in such request. At least twenty days before the date of sale, the trustee or the attorney for the trustee shall mail, by registered or certified mail with postage prepaid, a copy of the notice of the time and place of sale, addressed to each person whose name and address is set forth in a request therefor which has been recorded prior to the filing for record of the notice of default, directed to the address designated in such request.

(3) Each trust deed shall contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall be mailed to each person who is a party thereto at the address of such person set forth therein, and a copy of any notice of default and of any notice of sale shall be mailed to each such person at the same time and in the same manner required as though a separate request therefor had been filed by each of such persons as provided in this section.

(4) If no address of the trustor is set forth in the trust deed and if no request for notice by such trustor has been recorded as provided in this section, a copy of the notice of default shall be published at least three times, once a week for three consecutive weeks, in a newspaper of general circulation in each county in which the trust property or some part thereof is situated, such publication to commence not later than ten days after the filing for record of the notice of default.

(5) No request for a copy of any notice filed for record pursuant to this section nor any statement or allegation in any such request nor any record thereof shall affect the title to trust property or be deemed notice to any person that any person requesting copies of notice of default or of notice of sale has or claims any right, title, or interest in or lien or claim upon the trust property.

Source:Laws 1965, c. 451, § 8, p. 1427; Laws 1984, LB 679, § 21; Laws 1986, LB 999, § 5; Laws 1986, Third Spec. Sess., LB 3, § 18; Laws 2004, LB 813, § 30;    Laws 2006, LB 876, § 54.    


76-1009. Sale of trust property; public auction; bids; postponement of sale; notice.

On the date and at the time and place designated in the notice of sale, the trustee shall sell the property at public auction to the highest bidder. The attorney for the trustee may conduct the sale. Any person, including the beneficiary, may bid at the sale. Every bid shall be deemed an irrevocable offer. If the purchaser refuses to pay the amount bid by him or her for the property struck off to him or her at the sale, the trustee may again sell the property at any time to the highest bidder, except that notice of the sale shall be given again in the same manner as the original notice of sale was required to be given. The party refusing to pay shall be liable for any loss occasioned thereby, and the trustee may also, in his or her discretion, thereafter reject any other bid of such person.

The person conducting the sale may, for any cause he or she deems expedient, postpone the sale of all or any portion of the property from time to time until it is completed, and in every such case, notice of postponement shall be given by public declaration thereof by such person at the time and place last appointed for the sale. The public declaration of the notice of postponement shall include the new date, time, and place of sale. No other notice of the postponed sale need be given unless the sale is postponed for longer than forty-five days beyond the day designated in the notice of sale, in which event notice thereof shall be given in the same manner as the original notice of sale is required to be given.

Source:Laws 1965, c. 451, § 9, p. 1428; Laws 2004, LB 999, § 45;    Laws 2010, LB732, § 4.    


Annotations

76-1010. Sale of trust property; bid; payment; delivery of deed; recitals; effect; rights of trustor; terminated, when.

(1) The purchaser at the sale shall forthwith pay the price bid, and upon receipt of payment, the trustee shall execute and deliver his or her deed to such purchaser. The trustee's deed may contain recitals of compliance with the requirements of the Nebraska Trust Deeds Act relating to the exercise of the power of sale and sale of the property described therein, including recitals concerning any mailing, personal delivery, and publication of the notice of default, any mailing and the publication and posting of notice of sale, and the conduct of sale. Such recitals shall constitute prima facie evidence of such compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.

(2) The trustee's deed shall operate to convey to the purchaser, without right of redemption, the trustee's title and all right, title, interest, and claim of the trustor and his or her successors in interest and of all persons claiming by, through, or under them, in and to the property sold, including all such right, title, interest, and claim in and to such property acquired by the trustor or his or her successors in interest subsequent to the execution of the trust deed. All right, title, interest, and claim of the trustor and his or her successors in interest, and of all persons claiming by, through, or under them, in and to the property sold, including all such right, title, interest, and claim in and to such property acquired by the trustor or his or her successors in interest subsequent to the execution of the trust deed, shall be deemed to be terminated as of the time the trustee or the attorney for the trustee accepts the highest bid at the time of the sale.

Source:Laws 1965, c. 451, § 10, p. 1429; Laws 2004, LB 999, § 46.    


Annotations

76-1011. Sale of trust property; proceeds of sale; disposition.

The trustee shall apply the proceeds of the trustee's sale, first, to the costs and expenses of exercising the power of sale and of the sale, including the payment of the trustee's fees actually incurred not to exceed the amount which may be provided for in the trust deed, second, to payment of the obligation secured by the trust deed, third, to the payment of junior trust deeds, mortgages, or other lienholders, and the balance, if any, to the person or persons legally entitled thereto.

Source:Laws 1965, c. 451, § 11, p. 1430; Laws 1984, LB 679, § 22.


Annotations

76-1012. Trust deed; default; reinstatement; recorded notice of default; cancellation; costs and expenses.

(1) Whenever all or a portion of the principal sum of any obligation secured by a trust deed has, prior to the maturity date fixed in such obligation, become due or been declared due by reason of a breach or default in the performance of any obligation secured by the trust deed, including a default in the payment of interest or of any installment of principal, or by reason of failure of the trustor to pay, in accordance with the terms of such trust deed, taxes, assessments, premiums for insurance, or advances made by the beneficiary in accordance with terms of such obligation or of such trust deed, the trustor or his or her successor in interest in the trust property or any part thereof or any other person having a subordinate lien or encumbrance of record thereon or any beneficiary under a subordinate trust deed, at any time within one month, or within two months if the notice of default is subject to subdivision (1)(b)(i) of section 76-1006, of the filing for record of notice of default under such trust deed, if the power of sale is to be exercised, may pay to the beneficiary or his or her successor in interest the entire amount then due under the terms of such trust deed and the obligation secured thereby, including costs and expenses actually incurred in enforcing the terms of such obligation, or trust deed, and the trustee's fees actually incurred not exceeding in the aggregate fifty dollars or one-half of one percent of the entire unpaid principal sum secured, whichever is greater, other than such portion of the principal as would not then be due had no default occurred, and thereby cure the default theretofore existing and thereupon all proceedings theretofore had or instituted shall be dismissed or discontinued, and the obligation and trust deed shall be reinstated and shall be and remain in force and effect the same as if no acceleration had occurred. If the default is cured and the trust deed reinstated in the manner provided in this section, the beneficiary, or his or her assignee, shall, on demand of any person having an interest in the trust property, execute and deliver to him or her a request to the trustee that the trustee execute, acknowledge, and deliver a cancellation of the recorded notice of default under such trust deed, and any beneficiary under a trust deed, or his or her assignee, who, for a period of thirty days after such demand, refuses to request the trustee to execute and deliver such cancellation shall be liable to the person entitled to such request for all damages resulting from such refusal. A cancellation of recorded notice of default under a trust deed shall, when acknowledged, be entitled to be recorded and shall be sufficient if made and executed by the trustee in substantially the following form:

Cancellation of Notice of Default

The undersigned hereby cancels the notice of default filed for record ......., 20...., and recorded in book ........., page ......, (or computer system reference ..........) Records of ............ County, Nebraska, which notice of default refers to the trust deed executed by ............ as trustor, in which ............ is named as beneficiary and ........... as trustee, and filed for record ............, 20...., and recorded in book .........., page ......, (or computer system reference ..........) Records of ............ County, Nebraska.

Signature of trustee or attorney for trustee ..................................................

(2) Whenever all or a portion of the principal sum of any obligation secured by a trust deed has, prior to the maturity date fixed in such obligation, become due or been declared due by reason of a breach or default in the performance of any obligation secured by the trust deed, including a default in the payment of interest or of any installment of principal, or by reason of failure of the trustor to pay, in accordance with the terms of such trust deed, taxes, assessments, premiums for insurance, or advances made by the beneficiary in accordance with terms of such obligation or of such trust deed, in the event the trustor or his or her successor in interest or any other person having a subordinate lien or encumbrance of record thereon or any beneficiary under a subordinate trust deed makes payment of the entire amount then due under the terms of such trust deed and the obligation secured thereby at any time subsequent to the breach or default and prior to the sale of the trust property under section 76-1010, the beneficiary shall be allowed to collect the costs and expenses actually incurred in enforcing the terms of such obligation, or trust deed, including the trustee's fees, costs, and expenses actually incurred, not to exceed the amount provided in the trust deed or the obligation secured thereby.

Source:Laws 1965, c. 451, § 12, p. 1430; Laws 1969, c. 621, § 1, p. 2509; Laws 1986, LB 999, § 6; Laws 1986, Third Spec. Sess., LB 3, § 19; Laws 2004, LB 813, § 31;    Laws 2004, LB 999, § 47;    Laws 2006, LB 876, § 55;    Laws 2015, LB151, § 3.    


76-1013. Sale of trust property; deficiency; action; judgment; amount.

At any time within three months after any sale of property under a trust deed, as hereinabove provided, an action may be commenced to recover the balance due upon the obligation for which the trust deed was given as security, and in such action the complaint shall set forth the entire amount of the indebtedness which was secured by such trust deed and the amount for which such property was sold and the fair market value thereof at the date of sale, together with interest on such indebtedness from the date of sale, the costs and expenses of exercising the power of sale and of the sale. Before rendering judgment, the court shall find the fair market value at the date of sale of the property sold. The court shall not render judgment for more than the amount by which the amount of the indebtedness with interest and the costs and expenses of sale, including trustee's fees, exceeds the fair market value of the property or interest therein sold as of the date of the sale, and in no event shall the amount of said judgment, exclusive of interest from the date of sale, exceed the difference between the amount for which the property was sold and the entire amount of the indebtedness secured thereby, including said costs and expenses of sale.

Source:Laws 1965, c. 451, § 13, p. 1431.


Annotations

76-1014. Repealed. Laws 1994, LB 1275, § 13.

76-1014.01. Trust deed; reconveyance required; when; failure to deliver; effect; damages.

When the obligation secured by any trust deed has been satisfied, the beneficiary shall, upon receipt of a written request by the trustor or the trustor's successor in interest or designated representative or by the holder of a junior trust deed or junior mortgage, deliver to the trustor or trustor's successor in interest or designated representative a reconveyance in recordable form duly executed by the trustee. The reconveyance may designate the grantee therein as the person or persons entitled thereto. The beneficiary under such trust deed shall, upon receipt of a written request, deliver to the trustor or his or her successor in interest, as directed in the written request, the trust deed and the note or other evidence of the obligation so satisfied. If a trustee fails or refuses to execute a reconveyance required by the beneficiary, the beneficiary shall appoint a successor trustee that will execute a reconveyance.

Any beneficiary who fails to deliver such a reconveyance within sixty days after receipt of such written request shall be liable to the trustor or his or her successor in interest, as the case may be, for five thousand dollars or actual damages resulting from such failure, whichever is greater. In any action against the beneficiary or trustee pursuant to this section, the court shall award, in addition to the foregoing amounts, court costs, including reasonable attorney's fees, and may further order the trustee to reconvey the property. Successor in interest of the trustor shall include the current owner of the property and shall also include the person issuing a payoff check in accordance with the terms of a payoff letter from a beneficiary.

Source:Laws 1994, LB 1275, § 9; Laws 1995, LB 396, § 3; Laws 2002, LB 957, § 32;    Laws 2003, LB 218, § 19.    


76-1015. Sale of trust property; limitation of action.

The trustee's sale of property under a trust deed shall be made within the period prescribed in section 25-205 for the commencement of an action on the obligation secured by the trust deed unless the beneficiary elects to foreclose a trust deed in the manner provided for by law for the foreclosure of mortgages on real estate as provided in section 76-1005, in which case the statute of limitations for the commencement of such action shall be the same as the statute of limitations for mortgages pursuant to section 25-202.

Source:Laws 1965, c. 451, § 15, p. 1432; Laws 1997, LB 284, § 2.


76-1016. Trust deed; transfer of debt secured by; effect.

The transfer of any debt secured by a trust deed shall operate as a transfer of the security therefor.

Source:Laws 1965, c. 451, § 16, p. 1432.


76-1017. Trust deed; instruments entitled to be recorded; assignment of beneficial interest.

Any trust deed, substitution of trustee, assignment of a beneficial interest under a trust deed, notice of default, trustee's deed, reconveyance of the trust property and any instrument by which any trust deed is subordinated or waived as to priority, when acknowledged as provided by law, shall be entitled to be recorded, and shall, from the time of filing the same with the register of deeds for record, impart notice of the contents thereof, to all persons, including subsequent purchasers and encumbrancers for value, except that the recording of an assignment of a beneficial interest in the trust deed shall not in itself be deemed notice of such assignment to the trustor, his heirs or personal representatives, so as to invalidate any payment made by them, or any of them, to the person holding the note, bond or other instrument evidencing the obligation by the trust deed.

Source:Laws 1965, c. 451, § 17, p. 1433.


76-1018. Act, how cited.

Sections 76-1001 to 76-1018 shall be known and may be cited as Nebraska Trust Deeds Act.

Source:Laws 1965, c. 451, § 17, p. 1433; Laws 1994, LB 1275, § 8.


Annotations

76-1101. Corporations; real and personal property; Secretary of State; filed with; effect.

Any mortgage of real property or of both real property and goods, including fixtures, or a security interest in fixtures alone, made by a corporation which is a railroad, or by any corporation including public corporations engaged in the furnishing of electric or telephone service shall be recorded in the office of the register of deeds of the county where such property is located, and when so recorded shall be a lien on the real property and fixtures described in the mortgage or security agreement from the time of recording and on fixtures thereafter acquired subject to the mortgage or security agreement from the time of acquisition; and if the mortgage or security agreement includes goods, a copy of the mortgage or security agreement or a financing statement describing the goods by item or type shall be filed with the Secretary of State and shall be effective from the time provided in the Uniform Commercial Code, but the security interest in the goods and in goods thereafter acquired subject to the mortgage or security agreement shall be effective without refiling as long as the mortgage or security agreement remains in effect, and this lien shall be enforceable in accordance with the laws of this state governing mortgages of real estate.

Source:Laws 1965, c. 452, § 1, p. 1434.


76-1102. Corporations; personal property; Secretary of State; financing statement; filed with; effect.

A security interest in goods alone created by a corporation which is a railroad, or by any corporation including public corporations engaged in the furnishing of electric or telephone service shall be perfected by filing a financing statement in the office of the Secretary of State and shall in all respects except as to place of filing be governed by the Uniform Commercial Code. This is a statute providing for central filing of security interests in property within the meaning of article 9, Uniform Commercial Code.

Source:Laws 1965, c. 452, § 2, p. 1434; Laws 1999, LB 550, § 42.    


76-1103. Secretary of State; duties; fee.

The Secretary of State shall maintain a separate file for mortgages, security agreements and financing statements on which the debtor is a corporation which is a railroad, or by any corporation including public corporations engaged in the furnishing of electric or telephone service and the uniform fee for filing, indexing, and furnishing filing data for such financing statements shall be one dollar per page, but the total fee shall not be less than five dollars nor more than one hundred dollars.

Source:Laws 1965, c. 452, § 3, p. 1434.


76-1104. Prior mortgages of corporation; validity.

Nothing in sections 76-1101 to 76-1104 or in the Uniform Commercial Code shall impair the validity or effectiveness against third parties of any mortgage of real property, or of both real property and goods, including fixtures alone, heretofore made by a corporation which is a railroad, or by any corporation including public corporations engaged in the furnishing of electric or telephone service if such mortgage or security interest was recorded or filed or perfected in accordance with the law of this state prior to the effective date of the Uniform Commercial Code, and such law shall govern the continued effectiveness and enforcement of such mortgages and security interests with respect to all property covered thereby whether acquired by such corporation before or after such date.

Source:Laws 1965, c. 452, § 4, p. 1435.


Cross References

76-1201. Repealed. Laws 1989, LB 254, § 33.

76-1202. Repealed. Laws 1989, LB 254, § 33.

76-1203. Repealed. Laws 1989, LB 254, § 33.

76-1203.01. Repealed. Laws 1989, LB 254, § 33.

76-1204. Repealed. Laws 1989, LB 254, § 33.

76-1205. Repealed. Laws 1989, LB 254, § 33.

76-1206. Repealed. Laws 1989, LB 254, § 33.

76-1206.01. Repealed. Laws 1989, LB 254, § 33.

76-1207. Repealed. Laws 1989, LB 254, § 33.

76-1208. Repealed. Laws 1989, LB 254, § 33.

76-1209. Repealed. Laws 1989, LB 254, § 33.

76-1210. Repealed. Laws 1989, LB 254, § 33.

76-1211. Repealed. Laws 1989, LB 254, § 33.

76-1212. Repealed. Laws 1989, LB 254, § 33.

76-1213. Repealed. Laws 1989, LB 254, § 33.

76-1214. Act, how cited.

Sections 76-1214 to 76-1242 shall be known and may be cited as the Relocation Assistance Act.

Source:Laws 1989, LB 254, § 1.


76-1215. Intent and purpose.

The intent and purpose of the Relocation Assistance Act is to establish uniform policies and procedures for the fair and equitable treatment of persons displaced as a result of publicly financed projects in order that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole.

Source:Laws 1989, LB 254, § 2.


76-1216. Definitions, where found.

For purposes of the Relocation Assistance Act, the definitions found in sections 76-1217 to 76-1227 shall apply.

Source:Laws 1989, LB 254, § 3.


76-1217. Agency, defined.

Agency shall mean (1) any department, agency, or instrumentality of (a) the State of Nebraska, (b) any political subdivision of the State of Nebraska, (c) any combination of states which includes the State of Nebraska, (d) any combination of political subdivisions, either of the State of Nebraska alone or of the State of Nebraska and any other state or states acting in combination, and (2) any person who has the authority to acquire property by eminent domain under state law.

Source:Laws 1989, LB 254, § 4.


76-1218. Appraisal, defined.

Appraisal shall mean a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date supported by the presentation and analysis of relevant market information.

Source:Laws 1989, LB 254, § 5.


76-1219. Business, defined.

Business shall mean any lawful activity, except a farm operation, conducted primarily (1) for the purchase, sale, lease, or rental of personal or real property or for the manufacture, processing, or marketing of products, commodities, or any other personal property, (2) for the sale of services to the public, (3) by a nonprofit organization, or (4) solely for the purposes of sections 76-1228 to 76-1230, for the erection and maintenance of outdoor advertising displays, whether or not such displays are located on the premises on which any of the other activities defined as business are conducted.

Source:Laws 1989, LB 254, § 6.


76-1220. Comparable replacement dwelling, defined.

Comparable replacement dwelling shall mean any dwelling that is (1) decent, safe, and sanitary, (2) adequate in size to accommodate the occupants, (3) within the financial means of the displaced person, (4) functionally equivalent to the dwelling that the displaced person is required to leave, (5) in an area not subject to unreasonable adverse environmental conditions, and (6) in a location not less desirable than the location of the displaced person's dwelling with respect to public utilities, facilities, services, and the displaced person's place of employment.

Source:Laws 1989, LB 254, § 7.


76-1221. Displaced person, defined.

(1) Displaced person means:

(a) Any person who, on or after April 2, 1989, moves from or moves his or her personal property from real property as a result of a written notice of the intent to acquire, the initiation of negotiations for, or the acquisition of such real property, in whole or in part, for a publicly financed project;

(b) Any person who, as a result of a publicly financed project, moves from or moves his or her personal property from real property on which such person is a residential tenant, conducts a small business as defined by criteria established by the lead agency which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq., as amended, conducts a farm operation, or conducts a business, as a direct result of rehabilitation, demolition, or other displacing activity when such displacement is permanent; or

(c) Solely for purposes of sections 76-1228, 76-1229, and 76-1238, any person who moves from or moves his or her personal property from real property as a direct result of (i) written notice of intent to acquire or the acquisition of other real property, in whole or in part, on which such person conducts a business or farm operation or (ii) the rehabilitation, demolition, or other displacing activity of other real property on which such person conducts a business or a farm operation, when such displacement is permanent.

(2) Displaced person does not include:

(a) A person who is determined by the displacing agency to be in unlawful occupancy of the real property prior to or after the initiation of negotiations for acquisition of the real property or a person who has been evicted for cause;

(b) In any case in which the displacing agency acquires property for a publicly financed project, any person who occupies such property on a rental basis after the property has been acquired by the displacing agency or for a period subject to termination when the property is needed for the project;

(c) A person who moves before the initiation of negotiations for acquisition of the real property unless the agency determines that the person was displaced as a direct result of the program or project;

(d) A person who initially enters into occupancy of the property after the date of its acquisition for the project;

(e) A person who has occupied the property for the purpose of obtaining assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq., as amended;

(f) A person who is not required to relocate permanently as a direct result of a project;

(g) An owner-occupant who moves as a result of the rehabilitation or demolition of the real property or an owner-occupant who moves as a result of an acquisition of real property when the acquisition of the real property meets all the following conditions:

(i) No specific site or real property needs to be acquired, although the agency may limit its search for alternative sites to a general geographic area;

(ii) The real property to be acquired is not part of an intended, planned, or designated project area where all or substantially all of the real property within the area is to be acquired within specific time limits;

(iii) The agency will not acquire the real property if negotiations fail to result in an amicable agreement and the owner is so informed in writing; and

(iv) The agency informs the owner in writing of what it believes to be the market value of the real property.

Subdivision (g) of this subsection does not apply to any tenant who must move as a direct result of the acquisition, rehabilitation, or demolition of real property;

(h) An owner-occupant who moves as a result of an acquisition of real property when the acquisition of the real property is for a program or project undertaken by an agency or person that does not have authority to acquire real property by eminent domain, if such agency or person:

(i) Prior to making an offer for the real property, clearly advises the owner that it is unable to acquire the real property if negotiations fail to result in an agreement; and

(ii) Informs the owner in writing of what it believes to be the market value of the real property.

Subdivision (h) of this subsection does not apply to any tenant who must move as a direct result of the acquisition of real property;

(i) A person who the agency determines is not displaced as a direct result of a partial acquisition;

(j) A person who, after receiving a notice of the intent to acquire, the initiation of negotiations, or the acquisition of the real property, is notified in writing that he or she will not be displaced for a project;

(k) A person who retains the right of use and occupancy of the real property for life following its acquisition by the agency;

(l) Tenants required to move as a result of the sale of their dwelling to a person using downpayment assistance authorized by section 102 of the American Dream Downpayment Act, 42 U.S.C. 12821, as amended; or

(m) A person who has otherwise been determined to be ineligible for relocation assistance pursuant to rules and regulations adopted and promulgated according to law by the lead agency and consistent with 49 C.F.R. 24.208, as amended.

Source:Laws 1989, LB 254, § 8; Laws 2011, LB167, § 1.    


76-1222. Displacing agency, defined.

Displacing agency shall mean (1) any agency carrying out a publicly financed project which causes an individual to become a displaced person and (2) any person lacking the power of eminent domain who carries out a publicly financed project when that project causes an individual to be a displaced person.

Source:Laws 1989, LB 254, § 9.


76-1223. Farm operation, defined.

Farm operation shall mean any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.

Source:Laws 1989, LB 254, § 10.


76-1224. Lead agency, defined.

Lead agency shall mean the Nebraska Department of Transportation.

Source:Laws 1989, LB 254, § 11; Laws 2017, LB339, § 268.    
Operative Date: July 1, 2017


76-1225. Mortgage, defined.

Mortgage shall mean any of such classes of liens as are commonly given to secure advances on or the unpaid purchase price of real property under the laws of the state, together with the credit instruments, if any, secured thereby.

Source:Laws 1989, LB 254, § 12.


76-1226. Person, defined.

Person shall mean any individual, partnership, limited liability company, corporation, or association.

Source:Laws 1989, LB 254, § 13; Laws 1993, LB 121, § 482.


76-1227. Publicly financed project, defined.

Publicly financed project shall mean any project undertaken by an agency in which any part of the cost is to be paid (1) from funds derived from federal, state, or local taxes of any type, (2) by revenue or general obligation bonds issued by the agency, or (3) from funds derived by the agency from the sale of products or services in a proprietary capacity. Publicly financed project shall not mean a project in which the federal funds involved are in the form of a federal guarantee or insurance.

Source:Laws 1989, LB 254, § 14.


76-1228. Payment to displaced person; amount.

(1) Whenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of:

(a) Actual reasonable expenses in moving himself or herself and his or her family, business, farm operation, or other personal property;

(b) Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the head of the agency;

(c) Actual reasonable expenses in searching for a replacement business or farm; and

(d) Actual reasonable expenses necessary to reestablish at its new site a displaced farm, nonprofit organization, or small business as defined by criteria established by the lead agency which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq., as amended, but not to exceed ten thousand dollars.

(2) The lead agency may adopt and promulgate rules and regulations establishing a reasonable maximum payment under subdivision (1)(c) of this section which are consistent with regulations adopted by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq., as amended.

Source:Laws 1989, LB 254, § 15; Laws 2011, LB167, § 2.    


76-1229. Displacement from dwelling; expense and dislocation allowance; schedule.

Any displaced person eligible for payments under section 76-1228 who is displaced from a dwelling and who elects to accept the payments authorized by this section in lieu of the payments authorized by section 76-1228 may receive an expense and dislocation allowance which shall be determined according to a schedule established by the head of the lead agency. In establishing the schedule authorized by this section, the head of the lead agency shall take into consideration the reasonable expenses associated with relocation and the regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended.

Source:Laws 1989, LB 254, § 16.


76-1230. Displacement from business or farm; fixed payment; criteria.

Any displaced person eligible for payments under section 76-1228 who is displaced from the person's place of business or farm operation and who is eligible for payments under this section according to criteria established by the head of the lead agency may elect to accept the payment authorized by this section in lieu of the payment authorized by section 76-1228. Such payment shall consist of a fixed payment in an amount to be determined according to criteria established by the head of the lead agency, except that such payment shall be at least one thousand dollars but not more than twenty thousand dollars. In establishing the criteria authorized by this section, the head of the lead agency shall take into consideration the reasonable expenses associated with the relocation of a business or farm operation and the regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended. A person whose sole business at the displacement dwelling is the rental of such property to others shall not qualify for a payment under this section.

Source:Laws 1989, LB 254, § 17.


76-1231. Owner; displacement from dwelling; additional payment; amount.

In addition to payments otherwise authorized by the Relocation Assistance Act, the head of the displacing agency shall make an additional payment not to exceed twenty-two thousand five hundred dollars to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for at least one hundred and eighty days prior to the initiation of negotiations for the acquisition of the property. Such additional payment shall include the following elements:

(1) The amount, if any, which, when added to the acquisition cost of the dwelling acquired by the displacing agency, equals the reasonable cost of a comparable replacement dwelling;

(2) The amount, if any, which will compensate such displaced person for any increased interest costs and other debt service costs which such person is required to pay for financing the acquisition of any comparable replacement dwelling. Such amount shall be paid only if the dwelling acquired by the displacing agency was encumbered by a bona fide mortgage which was a valid lien on such dwelling for at least one hundred eighty days immediately prior to the initiation of negotiations for the acquisition of such dwelling;

(3) Reasonable expenses incurred by such displaced person for evidence of title, recording fees, and other closing costs incident to the purchase of the replacement dwelling but not including prepaid expenses; and

(4) The amount, if any, which will compensate such displaced person for the increase in property taxes resulting from the relocation for a period of three years.

Source:Laws 1989, LB 254, § 18.


76-1232. Owner; displacement from dwelling; additional payment; requirements.

The additional payment authorized by section 76-1231 shall be made only to a displaced person who purchases and occupies a decent, safe, and sanitary replacement dwelling within one year after the date on which such person receives final payment from the displacing agency for the acquired dwelling or the date on which the displacing agency's obligation under subdivision (2)(c) of section 76-1238 is met, whichever is later, except that the displacing agency may extend such period for good cause. If such period is extended, the payment under this section shall be based on the costs of relocating the person to a comparable replacement dwelling within one year of such date.

Source:Laws 1989, LB 254, § 19.


76-1233. Renter; displacement from dwelling; additional payment; requirements; use.

(1) In addition to amounts otherwise authorized by the Relocation Assistance Act, the head of a displacing agency shall make a payment to or for any displaced person displaced from any dwelling not eligible to receive a payment under section 76-1231 which dwelling was actually and lawfully occupied by such displaced person for at least ninety days immediately prior to (a) the initiation of negotiations for acquisition of such dwelling or (b) in any case in which displacement is not a direct result of acquisition, such other event as the head of the lead agency shall prescribe by rules and regulations which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended. Such payment shall consist of the amount necessary to enable such person to lease or rent for a period not to exceed forty-two months a comparable replacement dwelling, but the payment shall not exceed five thousand two hundred fifty dollars. At the discretion of the head of the displacing agency, a payment under this subsection may be made in periodic installments. Computation of a payment under this subsection to a low-income displaced person for a comparable replacement dwelling shall take into account such person's income.

(2) Any person eligible for a payment under subsection (1) of this section may elect to apply such payment to a downpayment on and other incidental expenses pursuant to the purchase of a decent, safe, and sanitary replacement dwelling. Such person may, at the discretion of the head of the displacing agency, be eligible under this subsection for the maximum payment allowed under subsection (1) of this section, except that in the case of a displaced homeowner who has owned and occupied the displacement dwelling for at least ninety days but not more than one hundred eighty days immediately prior to the initiation of negotiations for the acquisition of such dwelling, such payment shall not exceed the payment such person would otherwise have received under section 76-1231 had the person owned and occupied the displacement dwelling one hundred eighty days immediately prior to the initiation of such negotiations.

Source:Laws 1989, LB 254, § 20.


76-1234. Comparable replacement housing; required; head of displacing agency; powers.

No person shall be required to move from his or her dwelling as a result of any publicly financed project unless the head of the displacing agency is satisfied that comparable replacement housing is available to such person. If a publicly financed project cannot proceed on a timely basis because comparable replacement dwellings are not available and the head of the displacing agency determines that such dwellings cannot otherwise be made available, the head of the displacing agency may take such action as is necessary or appropriate to provide such dwellings by the use of funds authorized for such project. The head of the displacing agency may exceed the maximum amounts which may be paid under sections 76-1231 to 76-1233 on a case-by-case basis for good cause as determined in accordance with rules and regulations adopted and promulgated by the head of the lead agency which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended.

Source:Laws 1989, LB 254, § 21.


76-1235. Payments; how treated.

No payment received by a displaced person pursuant to the Relocation Assistance Act shall be considered as income or resources for the purpose of determining the eligibility or extent of eligibility of any person for assistance under any state law or for the purposes of the state's income tax laws or other tax laws. Except in the case of payments received in conjunction with a low-income housing assistance program, such payments shall not be considered as income or resources of any recipient of public assistance and such payments shall not be deducted from the amount of aid to which the recipient would otherwise be entitled.

Source:Laws 1989, LB 254, § 22.


76-1236. Other payments; effect on payment under act.

No payment or assistance under the Relocation Assistance Act shall be required to be made to any person or included as a program or project cost if such person receives a payment required by federal, state, or local law which is determined by the head of the displacing agency to have substantially the same purpose and effect as would the payment authorized by the act.

Source:Laws 1989, LB 254, § 23.


76-1237. Publicly financed projects; planning requirements.

Publicly financed projects shall be planned in a manner that (1) recognizes, at an early stage in the planning of such project and before the commencement of any action which will cause displacements, the problems associated with the displacement of individuals, families, businesses, and farm operations and (2) provides for the resolution of such problems in order to minimize adverse impacts on displaced persons and to expedite project advancement and completion.

Source:Laws 1989, LB 254, § 24.


76-1238. Relocation assistance advisory services; available; when; requirements.

(1) The head of any displacing agency shall ensure that the relocation assistance advisory services described in subsection (2) of this section are made available to all persons displaced by such agency. If the agency head determines that any person occupying property immediately adjacent to the property where the displacing activity occurs is caused substantial economic injury as a result of the activity, the agency head may make available to such person such advisory services.

(2) Each relocation assistance advisory program required by this section shall include such measures, facilities, or services as may be necessary or appropriate in order to:

(a) Determine and make timely recommendations on the needs and preferences, if any, of displaced persons for relocation assistance;

(b) Provide current and continuing information on the availability, sale prices, and rental charges of comparable replacement dwellings for displaced homeowners and tenants and suitable locations for businesses and farm operations;

(c) Assure that a person shall not be required to move from a dwelling unless the person has had a reasonable opportunity to relocate to a comparable replacement dwelling except in the case of (i) a major disaster as defined in section 102(2) of the Federal Disaster Relief Act of 1974, (ii) a national emergency declared by the President, or (iii) any other emergency which requires the person to move immediately from the dwelling because continued occupancy of the dwelling by such person constitutes a substantial danger to the health or safety of such person;

(d) Assist a person displaced from a business or farm operation in obtaining and becoming established in a suitable replacement location;

(e) Supply (i) information concerning other programs which might assist displaced persons and (ii) technical assistance to such persons in applying for assistance under such programs; and

(f) Provide other advisory services to displaced persons in order to minimize the hardships of adjusting to relocation.

(3) The head of a displacing agency shall coordinate the relocation assistance activities performed by such agency with other federal, state, or local governmental activities in the community which could affect the efficient and effective delivery of relocation assistance and related services.

(4) Notwithstanding section 76-1221, in any case in which a displacing agency acquires property for a program or project, any person who occupies such property on a rental basis after the property is acquired by the displacing agency or for a period subject to termination when the property is needed for the project shall be eligible for advisory services to the extent determined by the displacing agency in accordance with rules and regulations adopted and promulgated by the head of the lead agency which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended.

Source:Laws 1989, LB 254, § 25.


76-1239. Contracts for services authorized.

In order to prevent unnecessary expense and duplication of functions and to promote uniform and effective administration of relocation assistance programs, an agency may enter into contracts with any person for services in connection with such programs or may carry out its functions through any federal, state, or local agency having an established organization for conducting relocation assistance programs.

Source:Laws 1989, LB 254, § 26.


76-1240. Rules and regulations.

The head of the lead agency shall adopt and promulgate, with the active participation of the heads of other state agencies responsible for funding relocation and acquisition actions and in coordination with local governments, such rules and regulations as may be necessary to carry out the Relocation Assistance Act.

Source:Laws 1989, LB 254, § 27.


76-1241. Appeal; act, how construed.

Any person aggrieved by a determination as to eligibility for a payment authorized by the Relocation Assistance Act or as to the amount of the payment may appeal the determination. The appeal shall be in accordance with the Administrative Procedure Act. Nothing in the Relocation Assistance Act shall be construed as creating in any condemnation proceedings brought under the power of eminent domain any element of value or damage not in existence immediately prior to April 2, 1989.

Source:Laws 1989, LB 254, § 28.


Cross References

76-1242. Appropriations; use.

Any funds which have been appropriated by or to any agency for the acquisition of real property or any interest in real property for a particular program or project shall also be available for expenditure to carry out the Relocation Assistance Act as applied to such program or project.

Source:Laws 1989, LB 254, § 29.


76-1301. Declaration of purpose.

The Legislature finds that in order to insure the economic security of Nebraskans of retirement age it is necessary to require those persons who develop retirement subdivisions and communities to make a full and periodic disclosure of their fiscal condition.

The Legislature also finds it to be in the best interest of the tenants of a retirement subdivision or community, as well as in the best tradition of participatory democracy, that such tenants have a voice in the affairs of the subdivision or community through representation on the board of directors or an advisory committee to the board, when the retirement subdivision or community is owned and managed by a nonprofit entity.

Source:Laws 1972, LB 1311, § 1; Laws 1990, LB 978, § 1; Laws 2003, LB 61, § 1.    


76-1302. Terms, defined.

For the purposes of sections 76-1301 to 76-1315, unless the context otherwise requires:

(1) Retirement subdivision shall mean any land which is divided or proposed to be divided into ten or more lots, whether contiguous or not, for the purpose of sale or lease as part of a common promotional plan when such subdivision is advertised or represented as a retirement subdivision or as a subdivision primarily for retirees or elderly persons, or when there is a minimum age limit tending to attract persons who are nearing retirement age;

(2) Retirement community shall mean any complex or proposed complex of more than ten units, whether contained in one or more buildings or whether constructed on separate lots, offered for sale or lease as part of a common promotional plan when such community is advertised or represented as a retirement community or as a community primarily for retirees or elderly persons, or when there is a minimum age limit tending to attract persons who are nearing retirement age;

(3) Unit shall mean any apartment or structure intended primarily as a residence and consisting of one or more rooms occupying all or part of a floor or floors in a building of one or more floors or stories, including a single residence dwelling;

(4) Common promotional plan shall include an offer for sale or lease of lots or units in a retirement subdivision or community by a single developer, or a group of developers acting in concert when such lots or units are contiguous, or are known, designated, or advertised as a common entity or by a common name;

(5) Person shall mean an individual, unincorporated organization, partnership, limited liability company, association, corporation, trust, or estate;

(6) Developer shall mean any person who, directly or indirectly, sells or leases, or offers to sell or lease, or advertises for sale or lease any lots in a retirement subdivision or any units in a retirement community;

(7) Agent shall mean any person who represents or acts for or on behalf of a developer in selling or leasing or offering to sell or lease any lot or lots in a retirement subdivision or any units in a retirement community, but shall not include an attorney at law whose representation of a developer consists solely of rendering legal services;

(8) State shall mean the State of Nebraska;

(9) Purchaser shall mean a person who acquires by deed, lease, or other contract the use and occupancy of any lot or unit in a retirement subdivision or community;

(10) Offer shall include any inducement, solicitation, or attempt to encourage a person to acquire a lot or unit in a retirement subdivision or community;

(11) Disposition shall include sale, lease, assignment, award by lottery, or any other transaction by which a person acquires the use or occupancy of a lot or unit in a retirement subdivision or community;

(12) Agency shall mean the State Real Estate Commission;

(13) Lease shall mean a contract for the use and occupancy of real estate primarily as a residence when the contract term is for more than one year or is for life and when the lessee is required to pay an entrance fee;

(14) Managing agent shall mean a person who undertakes for any compensation the duties, responsibilities, or obligations of the management of a retirement subdivision or community;

(15) Audited financial statements shall mean balance sheet, income statement, retained earnings statement, cash-flow statement, and related notes, audited by an independent certified public accountant in accordance with generally accepted auditing standards;

(16) Prospective financial statements shall mean a financial forecast as defined by the American Institute of Certified Public Accountants of the revenue, expenses, working capital needs, and other financial requirements for the retirement subdivision or community for the development period and three fiscal years after the date of initial occupancy;

(17) Actuarial forecast shall mean an analysis which is performed by a qualified actuary in accordance with generally accepted actuarial principles and practices and which includes a statement of actuarial opinion, a pricing analysis, a cash-flow projection, and a statement of applicable actuarial methodology, formulas, and assumptions;

(18) Entrance fee shall mean an initial or deferred transfer to the developer of a sum of money or other property made or promised to be made as full or partial consideration for acceptance of a specified individual as a purchaser or resident of a retirement subdivision or community if the amount is more than reasonably necessary to cover a damage deposit and an advance of the first and last month's rent; and

(19) Association shall mean the person responsible to a purchaser, either directly or indirectly or through a managing agent, for the management of a retirement subdivision or community, including collecting from purchasers any periodic payments for maintenance of common areas or debt payments. A developer may be an association.

Source:Laws 1972, LB 1311, § 2; Laws 1993, LB 121, § 483; Laws 2003, LB 61, § 2.    


76-1303. State Real Estate Commission; administer sections; advisory group.

(1) The provisions of sections 76-1301 to 76-1315 shall be administered by the State Real Estate Commission.

(2) All rules, regulations and administrative procedures adopted by the agency pursuant to sections 76-1301 to 76-1315 shall be promulgated with the advice and counsel of a representative group of administrative personnel of those retirement communities and subdivisions affected by such rules, regulations and administrative practices.

Source:Laws 1972, LB 1311, § 3.


76-1304. Application of sections; exceptions.

Unless the method of disposition is adopted for the purpose of evasion of the provisions of sections 76-1301 to 76-1315, such provisions shall not apply to offers or dispositions of any lot or unit in a retirement subdivision or community by a purchaser for his or her own account in a single or isolated transaction, nor shall such provisions apply to the following:

(1) Offers or dispositions of evidences of indebtedness secured by a mortgage or deed of trust of real estate;

(2) Offers or dispositions of securities or units of interest issued by a real estate investment trust regulated under any state or federal statute;

(3) The sale or lease of real estate under or pursuant to court order;

(4) The disposition in any manner whatsoever of any unit of public housing under the administrative jurisdiction of a local public housing authority;

(5) Offers or dispositions of securities currently registered with the Director of Banking and Finance and under the provisions of the Securities Act of Nebraska; and

(6) Health care facilities licensed by the Department of Health and Human Services under the Health Care Facility Licensure Act.

Source:Laws 1972, LB 1311, § 4; Laws 1988, LB 693, § 17; Laws 1996, LB 1044, § 793; Laws 2000, LB 819, § 148;    Laws 2003, LB 61, § 3;    Laws 2007, LB296, § 700.    


Cross References

76-1305. Offering or disposition; requirements; right to cancel; escrow.

Unless the retirement subdivision or community lands or the transaction is exempt by section 76-1304:

(1) No person may offer or dispose of any lot or unit in any retirement subdivision or community located in this state, nor offer or dispose in this state of any lot or unit in any retirement subdivision or community located outside this state prior to the time such subdivision or community is registered in the manner prescribed by sections 76-1301 to 76-1315;

(2) No person may dispose of any lot or unit in any retirement subdivision or community unless a current public-offering statement is delivered to the prospective purchaser and the prospective purchaser is afforded a reasonable opportunity, under no circumstances less than forty-eight hours, to examine the public-offering statement prior to the disposition;

(3) A purchaser shall have the right to cancel a contract for disposition within three business days after the date the contract is executed or within three business days after the delivery to the purchaser of the public-offering statement, whichever is later. The right to cancel may not be waived and any attempt to obtain such a waiver is unlawful and shall be considered a violation of sections 76-1301 to 76-1315. A purchaser may cancel the contract by hand delivering or mailing, postage prepaid, a written statement of cancellation to the developer. The cancellation shall be deemed effective upon mailing. Upon cancellation, the developer shall refund to the purchaser within thirty days after receipt of the cancellation notice all payments and other consideration given by the purchaser reduced by the proportion of any benefits the purchaser has actually received by agreement with the developer prior to the effective date of the cancellation. A developer and purchaser shall agree in writing on a specific value for each benefit received by the purchaser for purposes of this section; and

(4) If in any retirement subdivision or community a purchaser's lot or unit remains subject to any debts or liabilities of the developer or association in connection with the initial construction of the improvements to the retirement subdivision or community, the developer shall hold all payments from purchasers in escrow at a state or federally regulated financial institution located in this state until such time, not to exceed twenty-four months, that the public improvements serving the retirement subdivision or community are substantially completed and secured financing has been obtained by the developer or association (a) in an amount adequate to complete the improvements to the retirement subdivision or community as represented in the statement of record and (b) under such terms as are consistent with the budget stated in the public-offering statement.

Source:Laws 1972, LB 1311, § 5; Laws 2003, LB 61, § 4.    


76-1306. Registration; record; contents; fee.

(1) A retirement subdivision or community may be registered by filing with the agency a statement of record containing the following documents and information:

(a) An acknowledgment that the developer shall be amenable to process issued by any court of this state in any noncriminal proceeding arising under the provisions of sections 76-1301 to 76-1315 against the developer;

(b) A legal description of the lands offered for registration as a retirement subdivision or community, together with a map showing the subdivision proposed or made, and the dimensions of the lots, parcels, units, or interests and the relation of such lands to existing streets, roads, and other improvements;

(c) The states or jurisdictions, including the federal government, in which an application for registration or similar document has been filed, and any adverse order, judgment, or decree entered in connection with the retirement subdivision or community lands by the regulatory authorities in each jurisdiction or by any court;

(d) The developer's name, address, and the form, date, and jurisdiction of organization; and the address of each of its offices in this state;

(e) The name, address, and principal occupation for the last five years of every director and officer of the developer or person occupying a similar status, performing similar functions, or having an interest in the retirement subdivision or community lands and the extent and nature of his or her interest in the developer or the retirement subdivision or community lands as of a specified date within thirty days of the filing of the application;

(f) A statement, in a form acceptable to the agency, of the condition of the title to the retirement subdivision or community lands including encumbrances as of a specified date within thirty days of the date of application by a title opinion of a licensed attorney, not a salaried employee, officer, or director of the developer, or by other evidence of title acceptable to the agency;

(g) Copies of the instruments which will be delivered to a purchaser to evidence his or her interest in the retirement subdivision or community lands and of the contracts and other agreements which a purchaser will be required to agree to or sign;

(h) Copies of the instruments by which the interest in the retirement subdivision or community lands was acquired and a statement of any lien or encumbrance upon the title and copies of the instruments creating the lien or encumbrance, if any, with data as to recording;

(i) If there is a lien or encumbrance affecting more than one lot, parcel, unit, or interest, a statement of the consequences for a purchaser of failure to discharge the lien or encumbrance and the steps, if any, taken to protect the purchaser in case of this eventuality;

(j) Copies of instruments creating easements, restrictions, or other encumbrances affecting the retirement subdivision or community lands;

(k) A statement of the zoning and other governmental regulations affecting the use of the retirement subdivision or community lands and also of any existing taxes and existing or proposed special taxes or assessments which affect such lands;

(l) The proposed public-offering statement;

(m) Current audited financial statements of the developer and, if different, of any association. If the developer or association has been in existence for less than one year at the date of application it may provide prospective financial statements, compiled by a certified public accountant under generally accepted accounting standards, unless an examined statement is required under subdivision (1)(n) of this section;

(n) Upon initial registration or an amendment expanding a retirement subdivision or community, prospective financial statements examined by a certified public accountant in accordance with generally accepted standards for an examination of a forecast. Examined prospective financial statements shall not be required of a developer of a retirement subdivision or community if (i) all payments by purchasers are held in escrow at a state or federally regulated financial institution located within this state until closing of the disposition, (ii) all public improvements serving the units or lots are completed prior to disposition, and (iii) the interests in a unit or lot of a purchaser who is not in default on the contract for disposition will upon disposition be free of or not subject to disturbance by any encumbrances incurred by the developer or association for purchase or improvement of the retirement subdivision or community;

(o) Upon initial registration or an amendment expanding a retirement subdivision or community which offers a promise to provide nursing or health-related services to purchasers in the future pursuant to contracts effective for the life of the purchaser or a period in excess of one year in consideration for an entrance fee, an actuarial forecast in a form satisfactory to the agency, which identifies the qualifications of the actuary or actuaries preparing the forecast;

(p) Information concerning any adjudication of bankruptcy against the developer, the association, the managing agent, or any principal owning more than ten percent of the interests in the retirement subdivision or community, developer, association, or managing agent at the time of filing; and

(q) Any other information which the agency by its rules requires for the protection of purchasers.

(2) At the time of filing a statement of record, or any amendment thereto, the developer shall pay to the agency a fee, not in excess of two hundred dollars, in accordance with a schedule to be fixed by the regulations of the agency, which fees may be used by the agency to defray part of the cost of rendering services under sections 76-1301 to 76-1315.

(3) The filing with the agency of a statement of record, or of an amendment thereto, shall be deemed to have taken place upon the receipt thereof, accompanied by payment of the fee required by subsection (2) of this section.

(4) The information contained in or filed with any statement of record shall be made available to the public under such regulations as the agency may prescribe and copies thereof shall be furnished to anyone requesting them at such reasonable charge as the agency may prescribe.

(5) If the developer registers additional retirement subdivision or community lands, he or she may consolidate the subsequent registration with any earlier registration offering such lands for disposition under the same promotional plan.

(6) The developer, association, and managing agent shall immediately report to the agency any additional liens, adjudication of bankruptcy against the developer, the association, the managing agent, or any principal owning more than ten percent of the interests in the retirement subdivision or community, developer, association, or managing agent, and any action or development which materially changes the condition of the title to the retirement subdivision or community lands or to the disclosures in the statement of record, including the public-offering statement.

(7) Nothing in sections 76-1301 to 76-1315 shall require retirement subdivisions or community lands in existence on August 31, 2003, to prepare audited financial statements from the date of their inception, but such audited financial statements for the most recent fiscal year ending before August 31, 2003, shall be filed as otherwise required by the terms of sections 76-1301 to 76-1315.

Source:Laws 1972, LB 1311, § 6; Laws 1983, LB 447, § 88; Laws 2003, LB 61, § 5.    


76-1307. Public-offering statement; contents.

(1) A public-offering statement shall disclose fully and accurately the physical characteristics of the retirement subdivision or community. The proposed public-offering statement submitted to the agency shall be in a form prescribed by its rules and shall as a minimum include the following:

(a) The name and principal address of the developer;

(b) A general description of the retirement subdivision or community stating the total number of lots, parcels, units, or interests in the offering;

(c) The significant terms of any encumbrances, easements, liens, and restrictions, including zoning and other regulations affecting such lands and each unit or lot, and a statement of all existing taxes and existing or proposed special taxes or assessments which affect such lands;

(d) A statement of the use for which the property is offered;

(e) Information concerning improvements, including hospitals, health and recreational facilities of any kind, streets, water supply, levees, drainage control systems, irrigation systems, sewage disposal facilities and customary utilities, and the estimated cost, date of completion, and responsibility for construction and maintenance of existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in the retirement subdivision or community;

(f) A statement that audited financial statements or prospective financial statements, or both if applicable, for the developer and any association are on file with the agency;

(g) A statement, if applicable, of the association's ability to incur debt secured by a lot or unit after it has been disposed of to a purchaser;

(h) A statement, if applicable, of any affiliation of the association or developer with a for-profit or nonprofit organization and the nature of the affiliation and the extent to which the affiliate organization is responsible for the financial and contractual obligations of the association;

(i) A statement, if applicable, of the policy of the association with regard to any health or financial conditions upon which the association may require a purchaser to relinquish occupancy of a lot or unit;

(j) If a purchaser will be required to pay a periodic payment that is subject to change by the association for the purpose of expenses and liabilities of the association, a detailed current budget or projected budget of the expenses and liabilities of the association, the assumptions upon which the budget or expected budget is based, including the number of units or lots assumed under the budget to be paying such periodic payments, and if any secured debt, the effect on monthly payments if less than the assumed number of units or lots are disposed of to purchasers;

(k) A description of the insurance coverage or a statement that there is no insurance coverage provided for the benefit of the retirement subdivision or community;

(l) A statement describing the purchaser's cancellation rights; and

(m) Additional information required by the agency to assure full and fair disclosure to prospective purchasers.

(2) The public-offering statement shall not be used for any promotional purposes before registration of the retirement subdivision or community and afterwards only if it is used in its entirety. No person may advertise or represent that the agency approves or recommends the retirement subdivision or community lands or disposition thereof. No portion of the public-offering statement may be underscored, italicized, or printed in larger or heavier or different color type than the remainder of the statement unless the agency requires or permits it.

(3) The agency may require the developer to alter or amend the proposed public-offering statement in order to assure full and fair disclosure to prospective purchasers, and no change in the plan of disposition or development of the retirement subdivision or community may be made after registration without notifying the agency and without making an appropriate amendment to the public-offering statement. A public-offering statement is not current unless all amendments are incorporated.

Source:Laws 1972, LB 1311, § 7; Laws 2003, LB 61, § 6.    


76-1308. Statement of record; examination by agency.

Upon receipt of a statement of record in proper form, the agency shall forthwith initiate an examination to determine that:

(1) The developer can convey or cause to be conveyed the interest in a retirement subdivision or community offered for disposition if the purchaser complies with the terms of the offer, and when appropriate, that release clauses, conveyances in trust, or other safeguards have been provided;

(2) There is reasonable assurance that all proposed improvements will be completed as represented;

(3) Such developer and managing agent have not, or if not an individual, its officers, directors, and principals have not, been convicted of a crime involving land dispositions or any aspect of the land sales business in this state, the United States, or any other state or foreign country and have not been subject to any injunction or administrative order restraining a false or misleading promotional plan involving land dispositions; and

(4) The public-offering statement and other requirements of sections 76-1301 to 76-1315 have been satisfied.

Source:Laws 1972, LB 1311, § 8; Laws 2003, LB 61, § 7.    


76-1309. Effective date of registration; statement of record; suspension; when; hearing; when.

(1) Except as provided in subsection (3) of this section, the effective date of the registration of the retirement subdivision or community shall be the sixtieth day after the filing of the statement of record or such earlier date as the agency may determine, having due regard to the public interest and the protection of purchasers. If any amendment is filed prior to the effective date, the statement of record shall be deemed to have been filed when such amendment was filed.

(2) If it appears to the agency that the statement of record, or any amendment thereto, is on its face incomplete or inaccurate in any material aspect, the agency shall notify the developer prior to the date the registration would otherwise be effective. Such notification shall serve to suspend the effective date of the filing until the sixtieth day after the developer files such additional information as the agency shall require. If the developer fails to provide additional information as required by the agency within ninety days after receiving notice, the agency may deny the registration.

(3) Any developer, upon notice of suspension as identified in subsection (2) of this section or denial of registration, may within twenty days after the date of such notice file a request for hearing, and such hearing shall be held within forty-five days after the receipt of such request and in accordance with the rules and regulations promulgated by the agency.

Source:Laws 1972, LB 1311, § 9; Laws 2003, LB 61, § 8.    


76-1310. Annual report; contents.

Within thirty days after each annual anniversary date of an order registering a retirement subdivision or community, the developer or managing agent of such lands shall file a report in the form prescribed by the rules of the agency. The report shall include current audited financial statements, a current public offering statement, any amendments to the statement of record, and information concerning any adjudication of bankruptcy against the developer, the association, the managing agent, or any principal owning more than ten percent of the interest in the retirement subdivision or community, developer, association, or managing agent at the time of filing.

Source:Laws 1972, LB 1311, § 10; Laws 2003, LB 61, § 9.    


76-1311. Rules and regulations; investigations.

The agency shall adopt, amend, or repeal such rules and regulations as are necessary for the enforcement of the provisions of sections 76-1301 to 76-1315, in accordance with the Administrative Procedure Act, regarding the adoption of such rules and regulations. The agency shall thoroughly investigate all matters relating to the application and may require a personal inspection of the real estate by a person or persons designated by it. All expenses incurred by the agency in investigating such real estate and the proposed sale thereof shall be borne by the developer and the agency shall require a deposit sufficient to cover such expenses prior to incurring the same.

Source:Laws 1972, LB 1311, § 11.


Cross References

76-1312. Agency; powers.

(1) The agency may:

(a) Make necessary public or private investigations within or outside of this state to determine whether any person has violated or is about to violate the provisions of sections 76-1301 to 76-1315 or any rule or order under the provisions of sections 76-1301 to 76-1315, or to aid in the enforcement of the provisions of sections 76-1301 to 76-1315 or in the prescribing of rules and forms under the provisions of sections 76-1301 to 76-1315; and

(b) Require or permit any person to file a statement in writing, under oath or otherwise as the agency determines, as to all the facts and circumstances concerning the matter to be investigated.

(2) For the purpose of any investigation or proceeding under sections 76-1301 to 76-1315, the agency or any officer designated by rule may administer oaths or affirmations, and upon its own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.

Source:Laws 1972, LB 1311, § 12.


76-1313. Developer or association; representatives on governing body; separate advisory committee; selection; powers.

(1) When the developer or association of a Nebraska retirement subdivision or community is incorporated or has a certificate of authority to transact business under Nebraska statutes as a nonprofit corporation and such corporation governs the management of only one retirement subdivision or community, then:

(a) The purchasers of lands or units in the retirement subdivision or community shall annually have the opportunity to democratically select and designate at least one individual to represent the purchasers and to act as a member of the governing body of the corporation. A representative shall have the right to be present at all meetings, including committee meetings and executive sessions, of the governing body, to speak and to express opinions, and to vote on any of the business to come before the governing body. A representative shall be deemed to have been duly installed and to have his or her term commence upon election;

(b) The election shall be conducted in total by the purchasers described in subdivision (1) (a) of this section pursuant to rules adopted by them in open session; and

(c) The developer and association shall in no way attempt to interfere with, influence, or abridge the right of the purchasers to organize and conduct the election or the results of the election.

(2) When the developer or association of a Nebraska retirement subdivision or community is incorporated or has a certificate of authority to transact business under Nebraska statutes as a nonprofit corporation and such corporation governs the management of more than one retirement subdivision or community, then it may comply with subsection (1) of this section or comply with the following requirements:

(a) The corporation shall establish for each of its retirement subdivisions and communities a separate advisory committee composed of at least two purchasers of lands or units in that retirement subdivision or community;

(b) The purchasers in each retirement subdivision and community shall annually have the opportunity to democratically select and designate at least two individuals to represent the purchasers on that retirement subdivision's or community's advisory committee;

(c) The election for each retirement subdivision and community shall be conducted entirely by the purchasers in that particular retirement subdivision or community pursuant to rules adopted by them in an open meeting;

(d) The developer and any association shall in no way attempt to interfere with, influence, or abridge the right of the purchasers to organize and conduct the election or the results of the election;

(e) The corporation's governing body shall meet formally with each advisory committee at least once annually to provide the advisory committee an opportunity to speak and express opinions and obtain information relating to the financial condition and operation of the retirement community or subdivision; and

(f) An advisory committee shall be provided upon written request minutes of the governing body's meetings and of any financial statements of the corporation.

Source:Laws 1972, LB 1311, § 13; Laws 1990, LB 978, § 2; Laws 2003, LB 61, § 10.    


76-1314. Agency order; appeal.

An order of the agency which has become final may be appealed in accordance with the Administrative Procedure Act.

Source:Laws 1972, LB 1311, § 14; Laws 2003, LB 61, § 11.    


Cross References

76-1315. Prohibited acts; violations; penalty; injunction; cease and desist order.

(1) A developer, agent, managing agent, or association, or any other person subject to sections 76-1301 to 76-1315, shall not make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper or other publication, or in the form of a notice, circular, pamphlet, or letter, or over any radio or television station, or in any other way, an advertisement, announcement, or statement of any sort containing any assertion, representation, or statement which is untrue, deceptive, or misleading. A developer, agent, managing agent, or association shall not file with the agency or make, publish, disseminate, circulate, or deliver to any person or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or delivered to any person or placed before the public, a financial statement which contains representations which are untrue, deceptive, or misleading.

(2) If the developer, agent, managing agent, association, or other person subject to sections 76-1301 to 76-1315 violates any provision thereof, any person or class of persons damaged or otherwise adversely affected by the violation shall have a claim for appropriate relief, which may be brought in the county where the cause of action or part of the cause of action arose. The court may render any contract entered into in this state in violation of sections 76-1301 to 76-1315 void and unenforceable and any money paid under such contract, together with interest at the legal rate for judgments, may be recovered from the date of such payment or such violation, whichever is later. The court may also award such person or class of persons reasonable attorney's fees.

(3) Any developer, agent, or managing agent subject to sections 76-1301 to 76-1315 who offers or disposes of a unit or lot in a retirement subdivision or community without having complied with such sections or who violates any provision of such sections shall be guilty of a Class I misdemeanor.

(4) Whenever, in the judgment of the agency, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of sections 76-1301 to 76-1315, the Attorney General may maintain an action in the name of the State of Nebraska in the district court of Lancaster County to abate and temporarily and permanently enjoin such acts and practices, to enforce compliance with the provisions of sections 76-1301 to 76-1315, or to seek a civil penalty of not more than ten thousand dollars for each violation, with each day of continued violation to constitute a separate offense. The plaintiff shall not be required to give any bond and court costs shall not be adjudged against the plaintiff.

(5) The director of the agency, with the consent of the agency, shall have the power to issue a cease and desist order upon determination that sections 76-1301 to 76-1315 have been or are about to be violated.

Source:Laws 1972, LB 1311, § 15; Laws 1977, LB 39, § 209; Laws 2003, LB 61, § 12.    


76-1401. Act, how cited.

Sections 76-1401 to 76-1449 shall be known and may be cited as the Uniform Residential Landlord and Tenant Act.

Source:Laws 1974, LB 293, § 1; Laws 1991, LB 324, § 1.


Annotations

76-1402. Purposes; rules of construction.

(1) The Uniform Residential Landlord and Tenant Act shall be liberally construed and applied to promote its underlying purposes and policies.

(2) Underlying purposes and policies of the act are:

(a) To simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlord and tenant;

(b) To encourage landlord and tenant to maintain and improve the quality of housing; and

(c) To make uniform the law among those states which enact it.

Source:Laws 1974, LB 293, § 2; Laws 2001, LB 7, § 1.    


76-1403. Supplementary principles of law applicable.

Unless displaced by the provisions of the Uniform Residential Landlord and Tenant Act, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause, supplement the act's provisions.

Source:Laws 1974, LB 293, § 3; Laws 2001, LB 7, § 2.    


76-1404. Construction against implicit repeal.

The Uniform Residential Landlord and Tenant Act being a general act intended as a unified coverage of its subject matter, no part of it is to be construed as impliedly repealed by subsequent legislation if that construction can reasonably be avoided.

Source:Laws 1974, LB 293, § 4; Laws 2001, LB 7, § 3.    


76-1405. Remedies; administration and enforcement; duty to mitigate damages.

(1) The remedies provided by the Uniform Residential Landlord and Tenant Act shall be so administered that the aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages.

(2) Any right or obligation declared by the Uniform Residential Landlord and Tenant Act is enforceable by action unless the provision declaring it specifies a different and limited effect.

Source:Laws 1974, LB 293, § 5; Laws 2001, LB 7, § 4.    


76-1406. Settlement; authorized.

A claim or right arising under the Uniform Residential Landlord and Tenant Act or on a rental agreement may be settled by agreement.

Source:Laws 1974, LB 293, § 6; Laws 2001, LB 7, § 5.    


76-1407. Jurisdiction; territorial application.

The Uniform Residential Landlord and Tenant Act applies to, regulates, and determines rights, obligations, and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.

Source:Laws 1974, LB 293, § 7; Laws 2001, LB 7, § 6.    


76-1408. Exclusions from application of sections.

Unless created to avoid the application of the Uniform Residential Landlord and Tenant Act, the following arrangements are not governed by the act:

(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service.

(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his or her interest.

(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.

(4) Transient occupancy in a hotel or motel.

(5) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises.

(6) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

(7) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes.

(8) A lease of improved or unimproved residential land for a term of five years or more.

Source:Laws 1974, LB 293, § 8; Laws 2001, LB 7, § 7.    


76-1409. Courts; jurisdiction.

The district or county court of this state may exercise jurisdiction over any landlord or tenant with respect to any conduct in this state governed by the Uniform Residential Landlord and Tenant Act or with respect to any claim arising from a transaction subject to the act for a dwelling unit located within its jurisdictional boundaries.

Source:Laws 1974, LB 293, § 9; Laws 1983, LB 447, § 89; Laws 1984, LB 13, § 84; Laws 2001, LB 7, § 8.    


76-1410. Terms, defined.

Subject to additional definitions contained in the Uniform Residential Landlord and Tenant Act and unless the context otherwise requires:

(1) Action includes recoupment, counterclaim, setoff, suit in equity, and any other proceeding in which rights are determined, including an action for possession.

(2) Building and housing codes include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises, or dwelling unit. Minimum housing code shall be limited to those laws, resolutions, or ordinances or regulations, or portions thereof, dealing specifically with health and minimum standards of fitness for habitation.

(3) Dwelling unit means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.

(4) Good faith means honesty in fact in the conduct of the transaction concerned.

(5) Landlord means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by section 76-1417.

(6) Organization includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, or association, two or more persons having a joint or common interest, and any other legal or commercial entity.

(7) Owner means one or more persons, jointly or severally, in whom is vested (a) all or part of the legal title to property, or (b) all or part of the beneficial ownership and a right to present use and enjoyment of the premises; and the term includes a mortgagee in possession.

(8) Person includes an individual, limited liability company, or organization.

(9) Premises means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to the tenant.

(10) Rent means all payments to be made to the landlord under the rental agreement.

(11) Rental agreement means all agreements, written or oral, between a landlord and tenant, and valid rules and regulations adopted under section 76-1422 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.

(12) Roomer means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling units. Major facility in the case of a bathroom means toilet, or either a bath or shower, and in the case of a kitchen means refrigerator, stove, or sink.

(13) Single-family residence means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single-family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment, nor any other essential facility or service with any other dwelling unit.

(14) Tenant means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

Source:Laws 1974, LB 293, § 10; Laws 1993, LB 121, § 484.


76-1411. Obligation of good faith.

Every duty under the Uniform Residential Landlord and Tenant Act and every act which must be performed as a condition precedent to the exercise of a right or remedy under the act imposes an obligation of good faith in its performance or enforcement.

Source:Laws 1974, LB 293, § 11; Laws 2001, LB 7, § 9.    


76-1412. Unconscionability.

(1) If the court, as a matter of law, finds that a rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

(2) If unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the rental agreement or settlement to aid the court in making the determination.

Source:Laws 1974, LB 293, § 12.


76-1413. Notice.

(1) A person has notice of a fact if (a) he has actual knowledge of it, (b) he has received a notice or notification of it, or (c) from all facts and circumstances known to him at the time in question he has reason to know that it exists. A person knows or has knowledge of a fact if he has actual knowledge of it.

(2) A person notifies or gives a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person receives a notice or notification when (a) it comes to his attention, (b) in the case of the landlord, it is delivered at the place of business of the landlord through which the rental agreement was made or at any place held out by him as the place for receipt of the communication, or (c) in the case of the tenant, it is delivered in hand to the tenant or mailed to him at the place held out by him as the place for receipt of the communication, or in the absence of such designation, to his last-known place of residence.

(3) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction, and in any event from the time it would have been brought to his attention if the organization had exercised reasonable diligence.

Source:Laws 1974, LB 293, § 13.


76-1414. Terms and conditions of rental agreement; death of tenant; removal of personal property; liability.

(1) The landlord and tenant may include in a rental agreement terms and conditions not prohibited by the Uniform Residential Landlord and Tenant Act or other rule of law including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.

(2) In absence of agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.

(3) Rent shall be payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent shall be uniformly apportionable from day to day.

(4) Unless the rental agreement fixes a definite term, the tenancy shall be week to week in case of a roomer who pays weekly rent, and in all other cases month to month.

(5) Upon request by a landlord, the tenant may provide and routinely update the name and contact information of a person who is authorized by the tenant to enter the tenant's dwelling unit to retrieve and store the tenant's personal property if the tenant dies. Upon the death of a tenant, the landlord shall make a reasonable attempt to contact the authorized person, if any, within ten days after the death. The authorized person shall have twenty days after being contacted by the landlord to notify the landlord that he or she will claim the tenant's property, and he or she will then have twenty days after such notification to remove the tenant's personal property from the dwelling unit or obtain the personal property from where it is being stored. Upon presentation of a valid government-issued identification confirming the identity of the authorized person, the landlord shall grant the authorized person reasonable access to the rented dwelling unit or to where the personal property is being stored if not in the dwelling unit. If the tenant's personal property is not entirely removed from the dwelling unit by an authorized person, the landlord may dispose of the remaining property as prescribed in the Disposition of Personal Property Landlord and Tenant Act. If the landlord allows an authorized person to receive the tenant's personal property as provided by this subsection, the landlord has no further liability to the tenant, the tenant's estate, or the tenant's heirs for lost, damaged, or stolen personal property. If the landlord is unable to contact the authorized person at the address and telephone number provided by the tenant or the authorized person fails to respond to the landlord's notification within twenty days after contact is made, the landlord may dispose of the tenant's personal property as prescribed in the Disposition of Personal Property Landlord and Tenant Act.

Source:Laws 1974, LB 293, § 14; Laws 2001, LB 7, § 10;    Laws 2016, LB221, § 3.    


Cross References

Annotations

76-1415. Prohibited provisions in rental agreements.

(1) No rental agreement may provide that the tenant:

(a) Agrees to waive or to forego rights or remedies under the Uniform Residential Landlord and Tenant Act;

(b) Authorizes any person to confess judgment on a claim arising out of the rental agreement;

(c) Agrees to pay the landlord's or tenant's attorney's fees; or

(d) Agrees to the exculpation or limitation of any liability of the landlord arising due to active and actionable negligence of the landlord or to indemnify the landlord for that liability arising due to active and actionable negligence or the costs connected therewith.

(2) A provision prohibited by subsection (1) of this section included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by him or her to be prohibited, the tenant may recover actual damages sustained by him or her and reasonable attorney's fees.

Source:Laws 1974, LB 293, § 15; Laws 2001, LB 7, § 11.    


Annotations

76-1416. Security deposits; prepaid rent.

(1) A landlord may not demand or receive security, however denominated, in an amount or value in excess of one month's periodic rent, except that a pet deposit not in excess of one-fourth of one month's periodic rent may be demanded or received when appropriate, but this subsection shall not be applicable to housing agencies organized or existing under the Nebraska Housing Agency Act.

(2) Upon termination of the tenancy, property or money held by the landlord as prepaid rent and security may be applied to the payment of rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement or section 76-1421. The balance, if any, and a written itemization shall be delivered or mailed to the tenant within fourteen days after demand and designation of the location where payment may be made or mailed.

(3) If the landlord fails to comply with subsection (2) of this section, the tenant may recover the property and money due him or her and reasonable attorney's fees.

(4) This section does not preclude the landlord or tenant from recovering other damages to which he or she may be entitled under the Uniform Residential Landlord and Tenant Act.

(5) The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

Source:Laws 1974, LB 293, § 16; Laws 1999, LB 105, § 99;    Laws 2001, LB 7, § 12.    


Cross References

Annotations

76-1417. Disclosure.

(1) The landlord or any person authorized to enter into a rental agreement on his or her behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of:

(a) The person authorized to manage the premises; and

(b) An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for notices and demands.

(2) The information required to be furnished by this section shall be kept current and this section extends to and is enforceable against any successor landlord, owner, or manager.

(3) A person who fails to comply with subsection (1) of this section becomes an agent of each person who is a landlord for the purpose of:

(a) Service of process and receiving and receipting for notices and demands; and

(b) Performing the obligations of the landlord under the Uniform Residential Landlord and Tenant Act and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

Source:Laws 1974, LB 293, § 17; Laws 2001, LB 7, § 13.    


76-1418. Landlord to supply possession of dwelling unit.

At the commencement of the term the landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and section 76-1419. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in subsection (3) of section 76-1437. If the landlord makes reasonable efforts to obtain possession of the premises, he shall not be liable for an action under this section.

Source:Laws 1974, LB 293, § 18.


76-1419. Landlord to maintain fit premises.

(1) The landlord shall:

(a) Substantially comply, after written or actual notice, with the requirements of the applicable minimum housing codes materially affecting health and safety;

(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;

(c) Keep all common areas of the premises in a clean and safe condition;

(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 or her;

(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 (1)(e) and (1)(f) of this section 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 the Uniform Residential Landlord and Tenant Act, a landlord may employ a tenant to perform the obligations of the landlord.

Source:Laws 1974, LB 293, § 19; Laws 2001, LB 7, § 14.    


Annotations

76-1420. Limitation of liability.

(1) Unless otherwise agreed, a landlord, who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser, is relieved of liability under the rental agreement and the Uniform Residential Landlord and Tenant Act as to events occurring subsequent to written notice to the tenant of the conveyance, but the landlord remains liable to the tenant for any property and money to which the tenant is entitled under section 76-1416, except that assignment of any security deposits or prepaid rents to a bona fide purchaser with written notice to the tenant shall serve to relieve the conveying landlord of any further liability under section 76-1416.

(2) Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of liability under the rental agreement and the Uniform Residential Landlord and Tenant Act as to events occurring after written notice to the tenant of the termination of his or her management.

Source:Laws 1974, LB 293, § 20; Laws 2001, LB 7, § 15.    


76-1421. Tenant to maintain dwelling unit.

The tenant shall:

(1) Comply with all obligations primarily imposed upon tenants by applicable minimum standards of building and housing codes materially affecting health or safety;

(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) Dispose from his dwelling unit all ashes, rubbish, garbage, and other waste in a clean and safe manner;

(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;

(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) Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so;

(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) 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.

Source:Laws 1974, LB 293, § 21.


76-1422. Rules and regulations.

A landlord, from time to time, may adopt rules or regulations, however described, concerning the tenant's use and occupancy of the premises. It is enforceable as provided in section 76-1431 against the tenant only if:

(1) Its purpose is to promote the appearance, convenience, safety, or welfare of the tenants in the premises, preserve the landlord's property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

(2) It is reasonably related to the purpose for which it is adopted;

(3) It applies to all tenants in the premises in a fair manner;

(4) It is sufficiently explicit in its prohibition, direction, or limitation of the tenant's conduct to fairly inform him of what he must or must not do to comply;

(5) It is not for the purpose of evading the obligations of the landlord; and

(6) The tenant has notice of it at the time he enters into the rental agreement.

A rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant if reasonable notice of its adoption is given to the tenant and it does not work a substantial modification of his bargain.

Source:Laws 1974, LB 293, § 22.


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.

Source:Laws 1974, LB 293, § 23.


76-1424. Tenant to use and occupy.

Unless otherwise agreed, the tenant shall occupy his dwelling unit only as a dwelling unit. The rental agreement may require that the tenant notify the landlord of any anticipated extended absence from the premises in excess of seven days no later than the first day of the extended absence.

Source:Laws 1974, LB 293, § 24.


76-1425. Noncompliance by landlord.

(1) Except as provided in the Uniform Residential Landlord and Tenant Act, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with section 76-1419 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days, and the rental agreement shall terminate as provided in the notice subject to the following. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six months, the tenant may terminate the rental agreement upon at least fourteen days' written notice specifying the breach and the date of termination of the rental agreement. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his or her family, or other person on the premises with his or her consent.

(2) Except as provided in the Uniform Residential Landlord and Tenant Act, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or section 76-1419. If the landlord's noncompliance is willful the tenant may recover reasonable attorney's fees. If the landlord's noncompliance is caused by conditions or circumstances beyond his or her control, the tenant may not recover consequential damages, but retains remedies provided in section 76-1427.

(3) The remedy provided in subsection (2) of this section is in addition to any right of the tenant arising under subsection (1) of this section.

(4) If the rental agreement is terminated, the landlord shall return all prepaid rent and security recoverable by the tenant under section 76-1416.

Source:Laws 1974, LB 293, § 25; Laws 2001, LB 7, § 16.    


76-1426. Failure to deliver possession.

If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in section 76-1418, rent abates until possession is delivered and the tenant shall:

(1) Upon at least five days' written notice to the landlord terminate the rental agreement and upon termination the landlord shall return all prepaid rent and security; or

(2) Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the dwelling unit against any person wrongfully in possession or wrongfully withholding possession and recover the damages sustained by him.

If a person's failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person an amount not more than three months' periodic rent or threefold the actual damages sustained by him, whichever is greater, and reasonable attorney's fees.

Source:Laws 1974, LB 293, § 26.


76-1427. Wrongful failure to supply heat, water, hot water, or essential services.

(1) If contrary to the rental agreement or section 76-1419 the landlord deliberately or negligently fails to supply running water, hot water, or heat, or essential services, the tenant may give written notice to the landlord specifying the breach and may:

(a) Procure reasonable amounts of hot water, running water, heat and essential services during the period of the landlord's noncompliance and deduct their actual and reasonable cost from the rent;

(b) Recover damages based upon the diminution in the fair rental value of the dwelling unit; or

(c) Procure reasonable substitute housing during the period of the landlord's noncompliance, in which case the tenant is excused from paying rent for the period of the landlord's noncompliance.

In addition to the remedy provided in subdivisions (a) and (c), if the failure to supply is deliberate, the tenant may recover the actual and reasonable cost or fair and reasonable value of the substitute housing not in excess of an amount equal to the periodic rent, and in any case under this subsection reasonable attorney's fees.

(2) If the tenant proceeds under this section, he may not proceed under section 76-1425 as to that breach.

(3) The rights under this section do not arise until the tenant has given written notice to the landlord or if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent. This section is not intended to cover circumstances beyond the landlord's control.

Source:Laws 1974, LB 293, § 27.


76-1428. Landlord's noncompliance as defense to action for possession.

(1) In an action for possession based upon nonpayment of the rent or in an action for rent where the tenant is in possession, the tenant may counterclaim for any amount which he or she may recover under the rental agreement or the Uniform Residential Landlord and Tenant Act. In that event, the court from time to time may order the tenant to pay into court all or part of the rent accrued and thereafter accruing and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section, judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by the tenant is without merit and is not raised in good faith, the landlord may recover reasonable attorney's fees.

(2) In an action for rent where the tenant is not in possession, the tenant may counterclaim as provided in subsection (1) of this section but the tenant is not required to pay any rent into court.

Source:Laws 1974, LB 293, § 28; Laws 2001, LB 7, § 17.    


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.

Source:Laws 1974, LB 293, § 29.


Annotations

76-1430. Tenant's remedies for landlord's unlawful ouster, exclusion, or diminution of service.

If the landlord unlawfully removes or excludes the tenant from the premises or willfully and wrongfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to three months' periodic rent as liquidated damages, and a reasonable attorney's fee. If the rental agreement is terminated the landlord shall return all prepaid rent and security recoverable under section 76-1416.

Source:Laws 1974, LB 293, § 30.


76-1431. Noncompliance; failure to pay rent; effect; violent criminal activity upon premises; landlord; powers.

(1) Except as provided in the Uniform Residential Landlord and Tenant Act, if there is a noncompliance with section 76-1421 materially affecting health and safety or a material noncompliance by the tenant with the rental agreement or any separate agreement, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days, and the rental agreement shall terminate as provided in the notice subject to the following. If the breach is remediable by repairs or the payment of damages or otherwise and the tenant adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six months, the landlord may terminate the rental agreement upon at least fourteen days' written notice specifying the breach and the date of termination of the rental agreement.

(2) If rent is unpaid when due and the tenant fails to pay rent within three days after written notice by the landlord of nonpayment and his or her intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement.

(3) Except as provided in the Uniform Residential Landlord and Tenant Act, the landlord may recover damages and obtain injunctive relief for any noncompliance by the tenant with the rental agreement or section 76-1421. If the tenant's noncompliance is willful, the landlord may recover reasonable attorney's fees.

(4) Notwithstanding subsections (1) and (2) of this section or section 25-21,221, a landlord may, after five days' written notice of termination of the rental agreement and without the right of the tenant to cure the default, file suit and have judgment against any tenant or occupant for recovery of possession of the premises if the tenant, occupant, member of the tenant's household, guest, or other person who is under the tenant's control or who is present upon the premises with the tenant's consent, engages in any violent criminal activity on the premises, the illegal sale of any controlled substance on the premises, or any other activity that threatens the health or safety of other tenants, the landlord, or the landlord's employees or agents. Such activity shall include, but not be limited to, any of the following activities of the tenant, occupant, member of the tenant's household, guest, or other person who is under the tenant's control or who is present upon the premises with the tenant's consent: (a) Physical assault or the threat of physical assault; (b) illegal use of a firearm or other weapon or the threat of illegal use of a firearm or other weapon; (c) possession of a controlled substance if the tenant knew or should have known of the possession, unless such controlled substance was obtained directly from or pursuant to a medical order issued by a practitioner legally authorized to prescribe while acting in the course of his or her professional practice; or (d) any other activity or threatened activity which would otherwise threaten the health or safety of any person or involving threatened, imminent, or actual damage to the property.

(5) Subsection (4) of this section does not apply to a tenant if the violent criminal activity, illegal sale of any controlled substance, or other activity that threatens the health or safety of other tenants, the landlord, or the landlord's employees or agents, as set forth in subsection (4) of this section, is conducted by a person on the premises other than the tenant and the tenant takes at least one of the following measures against the person engaging in such activity:

(a) The tenant seeks a protective order, restraining order, or other similar relief which would apply to the person conducting such activity; or

(b) The tenant reports such activity to a law enforcement agency in an effort to initiate a criminal action against the person conducting the activity.

Source:Laws 1974, LB 293, § 31; Laws 2001, LB 7, § 18;    Laws 2016, LB221, § 4.    


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.

Source:Laws 1974, LB 293, § 32.


Annotations

76-1433. Waiver of landlord's right to terminate.

Acceptance of rent with knowledge of a default by tenant or acceptance of performance by the tenant that varies from the terms of the rental agreement or rules or regulations subsequently adopted by the landlord constitutes a waiver of his right to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred.

Source:Laws 1974, LB 293, § 33.


76-1434. Landlord liens; distraint of property; prohibited.

(1) A lien or security interest on behalf of the landlord in the tenant's household goods is not enforceable.

(2) Distraint for rent is abolished.

Source:Laws 1974, LB 293, § 34.


76-1435. Remedy for termination.

If the rental agreement is terminated, the landlord is entitled to possession and may have a claim for rent and a separate claim for actual damages for breach of the rental agreement and reasonable attorney's fees as provided in subsection (3) of section 76-1431.

Source:Laws 1974, LB 293, § 35.


76-1436. Recovery of possession limited.

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water, or other essential service to the tenant, except in case of abandonment, surrender, or as permitted in the Uniform Residential Landlord and Tenant Act.

Source:Laws 1974, LB 293, § 36; Laws 2001, LB 7, § 19.    


76-1437. Periodic tenancy; holdover remedies.

(1) The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least seven days prior to the termination date specified in the notice.

(2) The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.

(3) If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount not more than three months' periodic rent or threefold the actual damages sustained by him, whichever is greater, and reasonable attorney's fees. If the landlord consents to the tenant's continued occupancy, subsection (4) of section 76-1414 applies.

Source:Laws 1974, LB 293, § 37.


Annotations

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.

Source:Laws 1974, LB 293, § 38.


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).

(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.

Source:Laws 1974, LB 293, § 39.


76-1440. Action for possession.

An action for possession of any premises subject to the Uniform Residential Landlord and Tenant Act shall be commenced in the manner described by sections 76-1440 to 76-1447.

Source:Laws 1974, LB 293, § 40; Laws 1991, LB 324, § 2.


76-1441. Complaint for restitution; filing; contents.

(1) The person seeking possession shall file a complaint for restitution with the clerk of the district or county court. The complaint shall contain (a) the facts, with particularity, on which he or she seeks to recover; (b) a reasonably accurate description of the premises; and (c) the requisite compliance with the notice provisions of the Uniform Residential Landlord and Tenant Act. The complaint may notify the tenant that personal property remains on the premises and that it may be disposed of pursuant to section 69-2308 or subsection (5) of section 76-1414. The complaint may also contain other causes of action relating to the tenancy, but such causes of action shall be answered and tried separately, if requested by either party in writing.

(2) The person seeking possession pursuant to subsection (4) of section 76-1431 shall include in the complaint the incident or incidents giving rise to the suit for recovery of possession.

Source:Laws 1974, LB 293, § 41; Laws 1984, LB 13, § 85; Laws 1995, LB 175, § 2; Laws 2002, LB 876, § 81;    Laws 2016, LB221, § 5.    


76-1442. Summons; contents; issuance; service; when; affidavit of service.

The summons shall be issued and directed, with a copy of the complaint attached thereto, and shall state the cause of the complaint, the time and place of trial of the action for possession, answer day for other causes of action, and notice that if the defendant fails to appear judgment shall be entered against him or her. The summons may be served and returned as in other cases or by any person, except that the summons shall be served within three days, excluding nonjudicial days, from the date of issuance and shall be returnable within five days, excluding nonjudicial days, from the date of issuance. The person making the service shall file with the court an affidavit stating with particularity the manner in which he or she made the service. If diligent efforts have been made to serve the summons in the manner provided in sections 25-505.01 to 25-516.01 but such efforts were unsuccessful, the summons may be served in the manner provided in section 76-1442.01.

Source:Laws 1974, LB 293, § 42; Laws 1976, LB 858, § 1; Laws 1991, LB 324, § 3; Laws 1995, LB 52, § 1; Laws 2002, LB 876, § 82;    Laws 2003, LB 760, § 18.    


76-1442.01. Summons; alternative method of service; affidavit; contents.

When authorized by section 76-1442, service of a summons issued under such section may be made by leaving a copy of the summons at the defendant's last-known address and mailing a copy by first-class mail to such address. The plaintiff shall file an affidavit with the court showing that an attempt was made to serve the summons in the manner provided in sections 25-505.01 to 25-516.01, the reasons why such service was unsuccessful, and that service was made by posting the summons at the last-known address of the defendant and mailing a copy by first-class mail to the defendant.

Source:Laws 1991, LB 324, § 4.


76-1443. Continuance; when.

No continuance shall be granted unless extraordinary cause be shown to the court, and then not unless the defendant applying therefor shall deposit with the clerk of the court payment of any rents that have accrued, or give an undertaking with sufficient surety therefor, and, in addition, deposit with the clerk such rental payments as accrue during the pendency of the suit.

Source:Laws 1974, LB 293, § 43.


76-1444. Default of defendant.

If the defendant shall not appear in response to the summons, and it shall have been properly served, the court shall try the cause as though he were present.

Source:Laws 1974, LB 293, § 44.


76-1445. Defendant may appear and answer.

On or before the day fixed for his appearance, the defendant may appear and answer and assert any legal or equitable defense, setoff, or counterclaim.

Source:Laws 1974, LB 293, § 45.


76-1446. Trial; judgment; limitation; writ of restitution; issuance.

Trial of the action for possession shall be held not less than ten nor more than fourteen days after the issuance of the summons. The action shall be tried by the court without a jury. If the plaintiff serves the summons in the manner provided in section 76-1442.01, the action shall proceed as other actions for possession except that a money judgment shall not be granted for the plaintiff. If judgment is rendered against the defendant for the restitution of the premises, the court shall declare the forfeiture of the rental agreement, and shall, at the request of the plaintiff or his or her attorney, issue a writ of restitution, directing the constable or sheriff to restore possession of the premises to the plaintiff on a specified date not more than ten days after issuance of the writ of restitution. The plaintiff shall comply with the Disposition of Personal Property Landlord and Tenant Act and subsection (5) of section 76-1414 in the removal of personal property remaining on the premises at the time possession of the premises is restored.

Source:Laws 1974, LB 293, § 46; Laws 1976, LB 858, § 2; Laws 1995, LB 52, § 2; Laws 1995, LB 175, § 3; Laws 2016, LB221, § 6.    


Cross References

76-1447. Appeal; effect.

If either party feels aggrieved by the judgment, he may appeal as in other civil actions. An appeal by the defendant shall stay the execution of any writ of restitution, so long as the defendant deposits with the clerk of the district court the amount of judgment and costs, or gives an appeal bond with surety therefor, and thereafter pays into court, on a monthly basis, an amount equal to the monthly rent called for by the rental agreement at the time the complaint was filed.

Source:Laws 1974, LB 293, § 47.


76-1448. Act; applicability.

The Uniform Residential Landlord and Tenant Act applies to rental agreements entered into or extended or renewed after July 1, 1975.

Source:Laws 1974, LB 293, § 49; Laws 2001, LB 7, § 20.    


76-1449. Transactions entered into before effective date; effect.

Transactions entered into before July 12, 1974, and not extended or renewed after that date, and the rights, duties, and interests flowing from them remain valid and may be terminated, completed, consummated, or enforced as required or permitted prior to July 12, 1974.

Source:Laws 1974, LB 293, § 50.


76-1450. Act, how cited.

Sections 76-1450 to 76-14,111 shall be known and may be cited as the Mobile Home Landlord and Tenant Act.

Source:Laws 1984, LB 916, § 1.


76-1451. Purposes; construction.

(1) The Mobile Home Landlord and Tenant Act shall be liberally construed and applied to promote its underlying purposes and policies.

(2) The underlying purposes and policies of the Mobile Home Landlord and Tenant Act are:

(a) To simplify, clarify, and establish the law governing the rental of mobile home spaces and the rights and obligations of landlord and tenant; and

(b) To encourage landlord and tenant to maintain and improve the quality of mobile home living.

Source:Laws 1984, LB 916, § 2.


76-1452. Supplementary principles of law applicable.

Unless displaced by the provisions of the Mobile Home Landlord and Tenant Act, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement the provisions of the act.

Source:Laws 1984, LB 916, § 3.


76-1453. Remedies; administration and enforcement; duty to mitigate damages.

(1) The remedies provided by the Mobile Home Landlord and Tenant Act shall be so administered that the aggrieved party may recover appropriate damages. The aggrieved party shall have a duty to mitigate damages.

(2) Any right or obligation declared by the Mobile Home Landlord and Tenant Act shall be enforceable by action unless the provision declaring it specifies a different and limited effect.

Source:Laws 1984, LB 916, § 4.


76-1454. Settlement of claim or right.

A claim or right arising under the Mobile Home Landlord and Tenant Act or under a rental agreement may be settled by agreement.

Source:Laws 1984, LB 916, § 5.


76-1455. Public housing; not subject to act.

The Mobile Home Landlord and Tenant Act shall not apply to an occupancy in or operation of public housing as authorized, provided, or conducted pursuant to any federal law or regulation with which the act might conflict.

Source:Laws 1984, LB 916, § 6.


76-1456. Jurisdiction and service of process.

The district or county court of this state may exercise jurisdiction over any landlord or tenant with respect to any conduct in this state governed by the Mobile Home Landlord and Tenant Act or with respect to any claim arising from a transaction subject to the act for a dwelling unit located within its jurisdictional boundaries. Service outside this state may be made in the manner provided in section 25-540.

Source:Laws 1984, LB 916, § 7; Laws 1986, LB 750, § 4.


76-1457. Definitions, where found.

As used in the Mobile Home Landlord and Tenant Act, unless the context otherwise requires, the definitions found in sections 76-1458 to 76-1471 shall apply.

Source:Laws 1984, LB 916, § 8.


76-1458. Business, defined.

Business shall mean a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, two or more persons having a joint or common interest, or any other legal or commercial entity which is a landlord, owner, manager, or deemed to be an agent pursuant to section 76-1480.

Source:Laws 1984, LB 916, § 9; Laws 1993, LB 121, § 485.


76-1459. Dwelling unit, defined.

Dwelling unit shall mean a mobile home or the part of a mobile home that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household but shall not include any real property used to accommodate a mobile home.

Source:Laws 1984, LB 916, § 10.


76-1460. Good faith, defined.

Good faith shall mean honesty in fact in the conduct of the transaction concerned.

Source:Laws 1984, LB 916, § 11.


76-1461. Housing code, defined.

Housing code shall include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any mobile home park, mobile home space, or dwelling unit. Minimum housing code shall be limited to those laws, resolutions, ordinances, or regulations, or portions thereof, dealing specifically with health and minimum standards of fitness for habitation.

Source:Laws 1984, LB 916, § 12.


76-1462. Landlord, defined.

Landlord shall mean the mobile home park owner and any agent authorized to act on the owner's behalf in matters relating to tenancy in the park and shall include the manager of a mobile home park who fails to disclose as required by sections 76-1479 to 76-1482.

Source:Laws 1984, LB 916, § 13.


76-1463. Mobile home, defined.

Mobile home shall mean a movable or portable dwelling constructed to be towed on its own chassis, connected to utilities, and designed with or without a permanent foundation for year-round living. It may consist of one or more units that can be telescoped when towed and expanded later for additional capacity, or of two or more units, separately towable but designed to be joined into one integral unit, and shall include a manufactured home as defined in section 71-4603.

Source:Laws 1984, LB 916, § 14; Laws 1985, LB 313, § 25.


76-1464. Mobile home park, defined.

Mobile home park shall mean a parcel or contiguous parcels of land which have been so designated and improved that the parcel or parcels contain two or more mobile home lots available to the general public for the placement thereon of mobile homes for occupancy. The term mobile home park shall not be construed to include mobile homes, buildings, tents, or other structures temporarily maintained by any individual, corporation, company, or other entity on its own premises and used exclusively to house its own labor force, and shall not include real property which is rented or held out for rent for seasonal recreational purposes only and which is not intended for year-round occupancy.

Source:Laws 1984, LB 916, § 15.


76-1465. Mobile home space, defined.

Mobile home space shall mean a designated portion of a mobile home park designed for the accommodation of one mobile home and its accessory buildings or structures for the exclusive use of the occupants.

Source:Laws 1984, LB 916, § 16.


76-1466. Owner, defined.

Owner shall mean one or more persons, jointly or severally, in whom are vested (a) all or a part of the legal title to property or (b) all or part of the beneficial ownership and a right to present use and enjoyment of a mobile home park, and shall include a mortgagee in possession.

Source:Laws 1984, LB 916, § 17.


76-1467. Rent, defined.

Rent shall mean a payment to be made to a landlord pursuant to a rental agreement.

Source:Laws 1984, LB 916, § 18.


76-1468. Rental agreement, defined.

Rental agreement shall mean any agreement, written or implied by law, and any rules and regulations adopted pursuant to section 76-1494 which constitute the terms and conditions concerning the use and occupancy of a mobile home space.

Source:Laws 1984, LB 916, § 19.


76-1469. Rental deposit, defined.

Rental deposit shall mean a deposit of money to secure performance of a mobile home space rental agreement other than a deposit which is exclusively an advance payment of rent.

Source:Laws 1984, LB 916, § 20.


76-1470. Sublessee, defined.

Sublessee shall mean any person who rents or leases a mobile home from a tenant, but shall not include a person who rents or leases a space in a mobile home park. A tenant-sublessee relationship shall be governed by the Uniform Residential Landlord and Tenant Act.

Source:Laws 1984, LB 916, § 21.


Cross References

76-1471. Tenant, defined.

Tenant shall mean an owner of a mobile home who leases or rents space in a mobile home park, but shall not include a person who rents or leases a mobile home.

Source:Laws 1984, LB 916, § 22.


76-1472. Obligation of good faith.

Every duty under the Mobile Home Landlord and Tenant Act and every act which must be performed as a condition precedent to the exercise of a right or remedy under the act shall impose an obligation of good faith in its performance or enforcement.

Source:Laws 1984, LB 916, § 23.


76-1473. Unconscionability.

(1) If a court, as a matter of law, finds that a rental agreement or any provision of a rental agreement was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

(2) If a court, as a matter of law, finds that a settlement in which a party waives or agrees to forego a claim or right under the Mobile Home Landlord and Tenant Act or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid any unconscionable result.

(3) If unconscionability is put into issue by a party or by a court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the rental agreement or settlement to aid the court in making the determination.

Source:Laws 1984, LB 916, § 24.


76-1474. Notice.

(1) A person shall be deemed to have notice of a fact if the person (a) has actual knowledge of it, (b) has received a notice or notification of it, or (c) from all facts and circumstances known to him or her at the time in question has reason to know that it exists.

(2) A person notifies or gives a notice or notification to another by taking steps reasonably calculated to inform the other whether or not the other actually comes to know of it. A person receives a notice or notification when (a) it comes to the person's attention, (b) in the case of the landlord, it is delivered in hand or mailed by United States mail to the landlord's place of business at which the rental agreement was made or at any place held out by the landlord as the place for receipt of a communication or delivered to any individual who is deemed to be an agent pursuant to section 76-1480, or (c) in the case of the tenant, it is delivered in hand to the tenant or mailed by United States mail to the tenant at the place held out by the tenant as the place for receipt of a communication or, in the absence of such designation, to the tenant's last-known place of residence.

(3) Notice, knowledge, or a notice or notification received by an organization shall be effective for a particular transaction from the time it is brought to the attention of the individual conducting the transaction and in any event from the time it would have been brought to the person's attention if the organization had exercised reasonable diligence.

Source:Laws 1984, LB 916, § 25.


76-1475. Terms and conditions of rental agreement.

(1) A landlord and tenant may include in a rental agreement terms and conditions not prohibited by the Mobile Home Landlord and Tenant Act or other rule of law including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.

(2) A rental agreement may require a tenant to maintain liability insurance which names the landlord as an insured with respect to the mobile home space rented by the tenant. For purposes of this subsection, liability insurance shall mean insurance that protects the landlord from negligence on the part of the tenant and any invitees or guests of the tenant.

(3) The tenant shall pay as rent the amount stated in the rental agreement. In the absence of a rental agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the mobile home space.

(4) Rent shall be payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, periodic rent shall be payable at the beginning of any term of one month or less and thereafter in equal monthly installments and rent shall be uniformly apportionable from day to day.

(5) Rental agreements shall be from month to month unless otherwise specified in writing. A rental agreement may be canceled by at least thirty days' written notice given by either party. A landlord may not cancel a rental agreement solely for the purpose of making the tenant's mobile home space available for another mobile home unless otherwise agreed in writing. If the written rental agreement requires the removal by the tenant of the mobile home at the expiration of the lease period at the landlord's option, the landlord shall give the tenant thirty days' notice before exercising such option.

Source:Laws 1984, LB 916, § 26.


76-1476. Mobile home space improvements; ownership; duty of tenant.

Unless otherwise agreed in writing between the landlord and tenant, any improvement, other than a natural lawn, purchased and installed by a tenant on a mobile home space shall remain the property of the tenant even though affixed to or in the ground and may be removed or disposed of by the tenant prior to the termination of the tenancy. A tenant shall leave the mobile home space in substantially the same or better condition than upon taking possession.

Source:Laws 1984, LB 916, § 27.


76-1477. Prohibited provisions in oral rental agreements.

(1) Unless otherwise agreed in writing between the landlord and tenant, an oral rental agreement may not provide that the tenant or landlord:

(a) Agrees to waive or to forego rights or remedies under the Mobile Home Landlord and Tenant Act;

(b) Agrees to pay the other party's attorney's fees;

(c) Agrees to the exculpation or limitation of any liability of the other party arising under law or to indemnify the other party for that liability or the related costs; or

(d) Agrees to a designated agent for the sale of the tenant's mobile home.

(2) A provision prohibited by subsection (1) of this section included in a rental agreement shall be unenforceable. If a landlord or tenant knowingly uses a rental agreement containing provisions known to be prohibited, the other party may recover actual damages sustained, reasonable attorney's fees, and court costs.

Source:Laws 1984, LB 916, § 28.


76-1478. Receipt of rent free of obligation; prohibited.

A rental agreement, assignment, conveyance, trust deed, or security instrument may not permit the receipt of rent free of the obligation to comply with section 76-1492.

Source:Laws 1984, LB 916, § 29.


76-1479. Disclosure.

A landlord may offer a tenant the opportunity to sign a written rental agreement for a mobile home space. The landlord or any person authorized to enter into a rental agreement on his or her behalf shall disclose to the tenant in writing at or before entering into the rental agreement the name and address of:

(1) The person authorized to manage the mobile home park; and

(2) The owner of the mobile home park or a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for notices and demands.

The information required to be furnished by this section shall be kept current and refurnished to the tenant at the tenant's request. Upon termination of a landlord's interest in a mobile home park, the provisions of this section relating to disclosure and any written rental agreements in effect at the time of the termination shall extend to and be enforceable against any successor landlord, owner, or manager.

Source:Laws 1984, LB 916, § 30.


76-1480. Failure to disclose; effect.

A person who fails to disclose as required by section 76-1479 shall be deemed an agent of the landlord for the purpose of:

(1) Service of process and receiving and receipting for notices and demands; and

(2) Performing the obligations of the landlord under the Mobile Home Landlord and Tenant Act and rental agreement.

Source:Laws 1984, LB 916, § 31.


76-1481. Written rental agreement; delivery.

If there is a written rental agreement, the landlord shall tender and deliver a signed copy of the rental agreement to the tenant and the tenant shall sign and deliver to the landlord one fully executed copy of the rental agreement. Failure to comply with this section shall be deemed a material noncompliance with the rental agreement by the landlord or the tenant, as the case may be.

Source:Laws 1984, LB 916, § 32.


76-1482. Explanation of utility charges and services; required; when.

The landlord or any person authorized to enter into a rental agreement on the landlord's behalf shall provide a written explanation of utility rates, charges, and services to the prospective tenant before the rental agreement is signed unless the utility charges are to be paid by the tenant directly to the utility company.

Source:Laws 1984, LB 916, § 33.


76-1483. Rental deposit; limitation.

A landlord shall not demand or receive as rental deposit an amount or value in excess of one month's periodic rent.

Source:Laws 1984, LB 916, § 34.


76-1484. Rental deposit; how handled.

All rental deposits shall be held by the landlord for the tenant. Rental deposits may be held in a trust account, which may be a common trust account and which may be an interest-bearing account. Any interest earned on a rental deposit shall be the property of the landlord.

Source:Laws 1984, LB 916, § 35.


76-1485. Rental deposit; return; withholdings.

(1) A landlord shall, within thirty days from the date of termination of the tenancy or receipt in writing of the tenant's mailing address or delivery instructions, whichever is later, return the rental deposit to the tenant or furnish to the tenant a written statement showing the specific reason for withholding all or any portion of the rental deposit. The landlord may withhold from the rental deposit only such amounts as are reasonable:

(a) To remedy a tenant's default in the payment of rent or of other funds due to the landlord pursuant to the rental agreement; and

(b) To restore the mobile home space to its condition at the commencement of the tenancy, ordinary wear and tear excepted.

(2) In an action concerning the rental deposit, the burden of proving, by a preponderance of the evidence, the reason for withholding all or any portion of the rental deposit shall be on the landlord.

Source:Laws 1984, LB 916, § 36.


76-1486. Rental deposit; failure to provide written statement; effect; reversion to landlord; when.

A landlord who fails to provide a written statement as required by section 76-1485 shall forfeit all rights to withhold any portion of the rental deposit. If no mailing address or instructions are provided to the landlord within one year from the termination of the tenancy, the rental deposit shall revert to the landlord and the tenant shall be deemed to have forfeited all rights to the rental deposit.

Source:Laws 1984, LB 916, § 37.


76-1487. Termination of landlord's interest in park; deposit; how treated.

Upon termination of a landlord's interest in a mobile home park, the landlord or his or her agent shall, within a reasonable time, (1) transfer the rental deposit, or any remainder after any lawful deductions, to the landlord's successor in interest and notify the tenant in writing of the transfer and of the transferee's name and address or (2) return the deposit, or any remainder after any lawful deductions, to the tenant. The notice shall state the amount of rental deposit being transferred or assumed and shall be given by mail or personal service.

Source:Laws 1984, LB 916, § 38.


76-1488. Landlord's successor in interest; rights and obligations.

Upon the termination of a landlord's interest in a mobile home park and compliance with section 76-1487, the landlord shall be relieved of any further liability with respect to the rental deposit. The landlord's successor in interest shall have all the rights and obligations of the landlord with respect to the rental deposits, except that if the tenant does not object to the amount stated in the notice required by subdivision (1) of section 76-1487 within twenty days after receipt of the notice, the obligations of the landlord's successor to return the deposit shall be limited to the amount contained in the notice.

Source:Laws 1984, LB 916, § 39.


76-1489. Rental deposit; bad faith retention; damages.

The bad faith retention of all or any portion of a rental deposit by a landlord in violation of sections 76-1483 to 76-1488 shall subject the landlord to liquidated damages in an amount not to exceed one and one-half months' rent and reasonable attorney's fees.

Source:Laws 1984, LB 916, § 40.


76-1490. Rent increase; written notice.

Each tenant shall be notified in writing of any rent increase by actual notice or by United States mail at least sixty days prior to the effective date of the increase.

Source:Laws 1984, LB 916, § 41.


76-1491. Landlord deliver possession of mobile home space.

At the commencement of the term of tenancy, the landlord shall deliver possession of the mobile home space to the tenant in compliance with the rental agreement and section 76-1492. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in section 76-14,105.

Source:Laws 1984, LB 916, § 42.


76-1492. Landlord; duties; powers.

(1) A landlord shall:

(a) Make all repairs and do whatever is necessary to put and keep the mobile home park in a fit and habitable condition;

(b) Keep all common areas of the mobile home park in a clean and safe condition;

(c) Maintain in good and safe working order and condition all facilities supplied or required to be supplied by the landlord;

(d) Provide for the removal of garbage, rubbish, and other waste from the mobile home park; and

(e) Furnish outlets for provided utilities.

(2) A landlord shall not impose any condition connected with the rental or occupancy of a mobile home space which requires the tenant's exclusive use of a seller of fuel, furnishings, goods, services, or mobile homes unless such condition is necessary to protect the health, safety, aesthetic value, or welfare of mobile home tenants in the park. A landlord may impose reasonable requirements designed to standardize methods of utility connection and hookup. If any such conditions are imposed which result in charges for the goods or services, the charges shall not exceed the actual cost incurred in providing the tenant with the goods or services.

Source:Laws 1984, LB 916, § 43.


76-1493. Tenant; duties.

A tenant shall maintain his or her mobile home space in as good a condition as when the tenant took possession and shall:

(1) Comply with all obligations primarily imposed upon tenants by applicable provisions of city, county, and state housing codes materially affecting health and safety;

(2) Keep the mobile home space that the tenant occupies and uses reasonably clean and safe;

(3) Dispose from the tenant's mobile home space all rubbish, garbage, and other waste in a clean and safe manner;

(4) Not deliberately or negligently destroy, deface, damage, impair, or remove any part of the mobile home park or knowingly permit any guest or invitee to do so; and

(5) Conduct himself or herself and require any guests or invitees to conduct themselves in a manner that will not disturb the tenant's neighbors' peaceful enjoyment of the mobile home park.

Source:Laws 1984, LB 916, § 44.


76-1494. Landlord; rules and regulations.

A landlord may adopt rules or regulations, however described, concerning the tenant's use and occupancy of the mobile home park. The rules and regulations shall be enforceable against the tenant only if they are written and if:

(1) Their purpose is to promote the convenience, safety, or welfare of the tenants in the mobile home park, preserve the landlord's property from abuse, make a fair distribution of services and facilities held out for the tenants generally, or facilitate reasonable mobile home park management;

(2) They are reasonably related to the purpose for which adopted;

(3) They apply to all tenants in the mobile home park in a fair manner;

(4) They are sufficiently explicit in prohibition, direction, or limitation of the tenant's conduct to fairly inform him or her of what must or must not be done to comply;

(5) They are not for the purpose of evading the obligations of the landlord; and

(6) The prospective tenant is given a copy of any existing rules and regulations before entering into the rental agreement.

Notice of all additions, changes, deletions, or amendments to the rules and regulations shall be given to all mobile home tenants sixty days before they become effective. The landlord may change, add, delete, or amend the rules and regulations without sixty days' notice only with the written consent of at least one adult resident from a minimum of sixty percent of the households in the mobile home park. Adult resident shall mean a resident who has achieved the age of majority as defined in section 43-2101. Any rule or condition of occupancy which does not conform to the requirements of the Mobile Home Landlord and Tenant Act shall be unenforceable. A rule or regulation adopted after the tenant enters into the rental agreement shall be enforceable against the tenant only if it does not conflict with or contradict the tenant's rental agreement. Nothing in this section shall prohibit a landlord from adopting rules and regulations applicable to new tenants only and not to persons who are tenants prior to the effective date of the rules and regulations.

Source:Laws 1984, LB 916, § 45; Laws 1988, LB 790, § 32.


76-1495. Landlord; prohibited acts.

A landlord may not:

(1) Deny rental on the basis of race, color, religion, sex, or national origin;

(2) Require any person, as a precondition to renting, leasing, or otherwise occupying or removing from a mobile home space in a mobile home park, to pay an entrance or exit fee of any kind unless for services actually rendered or pursuant to a written agreement. A landlord may restrict the movement of mobile homes to reasonable hours and may require that all work in connection with the removal or installation of a mobile home, including, but not limited to, the hookup or disconnection of utilities, be done in a good and workmanlike manner;

(3) Deny any resident of a mobile home park the right to sell that person's mobile home at a price of his or her own choosing. The tenant shall, prior to selling the mobile home, give notice to the landlord, including, but not limited to, the name of the prospective purchaser. Unless otherwise agreed in writing, the landlord may reserve the right to approve or disapprove the prospective purchaser of the mobile home as a tenant within ten days after receiving notice of the intended sale. Any disapproval shall be in writing and shall be delivered to such tenant pursuant to section 76-1474. The landlord shall not unreasonably refuse or restrict the sale by a tenant of a mobile home located in his or her mobile home park, but the landlord may consider the size, ages, and composition of the prospective purchaser's family in determining if the mobile home purchaser may leave the home in the park. The landlord may also, in order to upgrade the quality of the mobile home park, prescribe reasonable requirements governing the age, physical appearance, size, or quality of the mobile home. In the event of a sale to a third party or mutual termination of the rental agreement, the landlord may within ten days after receiving written notice of the pending sale or mutual termination require that any mobile home that is no longer appropriate for the mobile home park or that is in disrepair be repaired to the landlord's satisfaction or removed from the park within sixty days. The landlord shall specify in writing the reasons for disapproval of the mobile home;

(4) Exact a commission or fee with respect to the price realized by the tenant selling the mobile home, unless the park owner or operator has acted as agent for the mobile home owner pursuant to a written agreement; or

(5) Require a tenant to furnish permanent improvements which cannot be removed by the tenant without damage to the mobile home or mobile home space at the expiration of the rental agreement.

Source:Laws 1984, LB 916, § 46.


76-1496. Landlord; access.

(1) A landlord shall not have the right of access to a mobile home owned by a tenant unless such access is necessary to prevent substantial damage to the mobile home space or is in response to an emergency situation.

(2) A landlord may at reasonable times enter onto a mobile home space in order to inspect the mobile home space, make necessary or agreed repairs or improvements, supply necessary or agreed services, or exhibit the mobile home space to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

Source:Laws 1984, LB 916, § 47.


76-1497. Tenant; authority to rent to another.

A tenant may rent the mobile home to another only upon written agreement with the mobile home park management. The landlord may require a guarantee from the tenant for the sublessee's mobile home space rent.

Source:Laws 1984, LB 916, § 48.


76-1498. Noncompliance by landlord; tenant's rights.

(1) If there is a material noncompliance by the landlord with the rental agreement or a noncompliance with section 76-1492 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied or if reasonable steps to remedy the breach have not been taken in fourteen days. The rental agreement shall terminate and the mobile home space shall be vacated as provided in the notice subject to the following:

(a) If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach or takes reasonable steps to remedy it prior to the date specified in the notice, the rental agreement will not terminate; and

(b) The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family, or other person in the mobile home park with the tenant's consent.

(2) A tenant may recover damages and obtain injunctive relief for any material noncompliance by the landlord with the rental agreement or section 76-1492.

(3) The remedy provided in subsection (2) of this section shall be in addition to any right of the tenant arising under subsection (1) of this section.

(4) If the rental agreement is terminated, the landlord shall return any prepaid rent and any rental deposit, less any allowable deductions, recoverable by the tenant under section 76-1485.

Source:Laws 1984, LB 916, § 49.


76-1499. Landlord; failure to deliver possession; remedies.

If a landlord fails to deliver physical possession of the mobile home space to the tenant as provided in section 76-1491, rent shall abate until possession is delivered and the tenant may:

(1) Upon written notice to the landlord, terminate the rental agreement and upon termination the landlord shall return all deposits; or

(2) Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the mobile home space against the landlord and recover the damages sustained by the tenant. If the failure by the landlord to deliver possession of the mobile home space is willful, the tenant may recover reasonable attorney's fees and court costs.

If the landlord delivers physical possession to the tenant but fails to comply with section 76-1492 at the time of delivery, rent shall not abate. The tenant may also proceed with the remedies provided in section 76-1498.

Source:Laws 1984, LB 916, § 50.


76-14,100. Landlord; removal or exclusion of tenant; failure to supply services; tenant; remedies.

If a landlord unlawfully removes or excludes a tenant from a mobile home park or willfully diminishes services to a tenant by interrupting or causing the interruption of electric, gas, water, or other essential service to the tenant, the tenant may recover possession, require the restoration of essential services, or terminate the rental agreement and, in any case, recover an amount not to exceed one and one-half months' periodic rent as liquidated damages and reasonable attorney's fees. If the rental agreement is terminated, the landlord shall return any prepaid rent and any rental deposit recoverable by the tenant under section 76-1485.

Source:Laws 1984, LB 916, § 51.


76-14,101. Noncompliance by tenant; landlord's rights.

(1) If there is a noncompliance with section 76-1493 materially affecting health and safety or a material noncompliance by the tenant with the rental agreement, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice. Only in the event the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach or takes reasonable steps to remedy it prior to the date specified in the notice, the rental agreement shall not terminate.

(2) If rent is unpaid when due and the tenant fails to pay rent within five days after written notice by the landlord of nonpayment and of the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement.

(3) A landlord may recover damages, obtain injunctive relief, or recover possession of the mobile home space by an action in forcible detainer for any material noncompliance by the tenant with the rental agreement or section 76-1493.

(4) The remedy provided in subsection (3) of this section shall be in addition to any right of a landlord arising under subsection (1) of this section.

Source:Laws 1984, LB 916, § 52.


76-14,102. Noncompliance by tenant affecting health and safety; landlord's rights.

If there is noncompliance by a tenant with section 76-1493 materially affecting health and safety or any condition which is ordered to be changed by the State Fire Marshal, the State Electrical Board, the Department of Health and Human Services, or any other regulatory body with jurisdiction over either the park or the mobile home space that can be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen days after written notice by the landlord specifying the breach and requesting that the tenant remedy the breach or take reasonable steps to remedy it within that period of time, the landlord may enter the mobile home space, cause the work to be done in a skillful manner, and submit an itemized bill for the actual and reasonable cost or the fair and reasonable value as additional rent on the next date when periodic rent is due or, if the rental agreement has been terminated, for immediate payment. If the landlord is assessed any fine, cost, or charge as a result of the tenant's failure to comply with an order issued by the State Fire Marshal, the State Electrical Board, the Department of Health and Human Services, or any other regulatory body with jurisdiction over either the park or the mobile home space, the landlord may require the tenant to pay such fine, cost, or charge.

Source:Laws 1984, LB 916, § 53; Laws 1996, LB 1044, § 794; Laws 2007, LB296, § 701.    


76-14,103. Failure to enforce rights; effect on subsequent enforcement.

Failure to enforce any portion of the rental agreement or to enforce any violation of the rules or regulations shall not constitute a waiver of the right to enforce the agreement against a subsequent violation.

Source:Laws 1984, LB 916, § 54.


76-14,104. Termination of tenancy; action for possession and damages.

(1) A landlord may terminate a tenancy only by means of the procedures provided in the Mobile Home Landlord and Tenant Act.

(2) If a tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and recover actual damages. If the tenant's holdover is willful and in bad faith, the landlord in addition may recover an amount not to exceed one and one-half months' periodic rent as liquidated damages and reasonable attorney's fees.

Source:Laws 1984, LB 916, § 55.


76-14,105. Violation of access rights; remedies.

(1) If a tenant refuses to allow reasonable lawful access to the mobile home space, the landlord may terminate the rental agreement and recover actual damages.

(2) If a landlord makes an unlawful entry 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.

Source:Laws 1984, LB 916, § 56.


76-14,106. Retaliatory conduct prohibited; remedies; landlord action for possession; when.

(1) Except as provided in this section, a landlord may not retaliate by increasing rent, decreasing services, bringing or threatening to bring an action for possession, or failing to renew a rental agreement after any of the following:

(a) A tenant has complained in good faith to a government agency charged with responsibility for enforcement of any code of a violation applicable to the mobile home park materially affecting health and safety;

(b) A tenant has complained to the landlord of a violation of section 76-1492;

(c) A tenant has organized or become a member of a tenants' union or similar organization; or

(d) A tenant has exercised any of the rights or remedies provided by the Mobile Home Landlord and Tenant Act or otherwise available at law.

(2) If a landlord acts in violation of subsection (1) of this section, the tenant shall be entitled to the remedies provided in section 76-1498 and shall have a defense in an action for possession.

(3) Notwithstanding subsections (1) and (2) of this section, a landlord may bring an action for possession if:

(a) The violation of any applicable housing code was caused primarily by lack of reasonable care by the tenant or other person in the tenant's household or upon the premises with the tenant's consent; or

(b) The tenant is in default in rent five days after rent is due unless otherwise agreed to by the landlord and tenant.

The maintenance of the action shall not release the landlord from liability under subsection (2) of section 76-1498.

Source:Laws 1984, LB 916, § 57.


76-14,107. Landlord, manager; relieved of liability; when.

(1) A landlord, who conveys a mobile home park in a good faith sale to a bona fide purchaser shall be relieved of liability under the rental agreement and the Mobile Home Landlord and Tenant Act as to events occurring subsequent to written notice to the tenant of the conveyance.

(2) A manager of a mobile home park shall be relieved of liability under the rental agreement and the Mobile Home Landlord and Tenant Act as to events occurring after written notice to the tenant of the termination of his or her management, except that such notice shall not terminate any agreement or legal liability arising prior to the notice.

Source:Laws 1984, LB 916, § 58.


76-14,108. Death of tenant; effect.

(1) If a tenant who is not the sole owner of a mobile home dies during the term of a rental agreement, the surviving joint tenant or tenant in common in the mobile home shall have all rights, privileges, and liabilities the same as the deceased tenant had.

(2) If a tenant who is the sole owner of a mobile home dies during the term of a rental agreement, the tenant's heirs or legal representative, or the landlord, may cancel the tenant's lease by giving thirty days' notice to the other, and the heirs or legal representative shall have the same rights, privileges, and liabilities as the tenant had.

Source:Laws 1984, LB 916, § 59.


76-14,109. Removal of abandoned mobile home; conditions.

If a tenant abandons a mobile home on a mobile home space, the mobile home may not be removed from the mobile home space by the tenant or his or her agent without a signed written authorization from the landlord granting clearance for removal, showing all money due and owing paid in full, or an agreement reached with the legal owner and the landlord. A mobile home shall be considered to be abandoned if the tenant has defaulted in rent and has, by absence of at least thirty days or by words or actions, reasonably indicated an intention not to continue the tenancy.

Nothing in this section shall prohibit a landlord from removing an abandoned mobile home from the mobile space and placing it in storage at the owner's expense or from utilizing any other legal remedy.

Source:Laws 1984, LB 916, § 60; Laws 1985, LB 313, § 26.


76-14,110. Landlord; assessment contract authorized.

Nothing in the Mobile Home Landlord and Tenant Act shall prohibit a landlord from contracting with tenants in order to provide services or facilities on an assessment basis.

Source:Laws 1984, LB 916, § 61.


76-14,111. Applicability of act.

The Mobile Home Landlord and Tenant Act shall apply to rental agreements entered into, extended, or renewed after January 1, 1985.

Source:Laws 1984, LB 916, § 62.


76-1501. Repealed. Laws 1983, LB 587, § 1.

76-1502. Repealed. Laws 1983, LB 587, § 1.

76-1503. Repealed. Laws 1983, LB 587, § 1.

76-1504. Repealed. Laws 1983, LB 587, § 1.

76-1505. Repealed. Laws 1983, LB 587, § 1.

76-1506. Repealed. Laws 1983, LB 587, § 1.

76-1507. Definitions, sections found.

For purposes of sections 76-1507 to 76-1516, unless the context otherwise requires, the definitions found in sections 76-1508 to 76-1514 shall be used.

Source:Laws 1981, LB 9, § 1; Laws 2011, LB160, § 1.    


76-1508. Agricultural land, defined.

Agricultural land shall mean land suitable for use in farming.

Source:Laws 1981, LB 9, § 2.


76-1509. Farming, defined.

Farming shall mean the cultivation of land for the production of agricultural crops, the raising of poultry, the production of eggs, the production of milk, the production of fruit or other horticultural crops, and grazing or the production of livestock. Farming shall not include the production of timber, forest products, nursery products, or sod, and farming shall not include a contract under which a processor or distributor of farm products or supplies provides spraying, harvesting, or other farm services.

Source:Laws 1981, LB 9, § 3.


76-1510. Fiduciary capacity, defined.

Fiduciary capacity shall mean an undertaking to act as executor, administrator, personal representative, guardian, conservator, or receiver.

Source:Laws 1981, LB 9, § 4.


76-1511. Trust, defined.

Trust shall mean a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it. Trust does not include a person acting in a fiduciary capacity, as defined in section 76-1510. A trust includes a legal entity holding property as trustee, agent, escrow agent, attorney in fact, and in any similar capacity.

Source:Laws 1981, LB 9, § 5.


76-1512. Family trust, defined.

Family trust shall mean a trust:

(1) In which a majority interest in the trust is held by and the majority of the beneficiaries are persons related to each other as spouse, parent, grandparent, lineal descendants of grandparents or their spouses and other legal descendants of the grandparents or their spouses, or persons acting in a fiduciary capacity for persons so related; and

(2) In which all the beneficiaries are natural persons, who are not acting as a trustee or in a similar capacity for a trust, as defined in section 76-1511, or persons acting in a fiduciary capacity, or nonprofit corporation.

Source:Laws 1981, LB 9, § 6.


76-1513. Authorized trust, defined.

Authorized trust shall mean a trust other than a family trust in which:

(1) The beneficiaries do not exceed twenty-five in number;

(2) The beneficiaries are all natural persons, who are not acting as a trustee or in a similar capacity for a trust as defined in section 76-1511, or persons acting in a fiduciary capacity, or nonprofit corporation; and

(3) Its income is not exempt from taxation under the laws of either the United States or the State of Nebraska, except that its income may be exempt from taxation under sections 501(c)(3) and 509(a)(3) of the Internal Revenue Code.

Source:Laws 1981, LB 9, § 7.


76-1514. Testamentary trust, defined.

Testamentary trust shall mean a trust created by devising or bequeathing property in trust in a will as such terms are used in the Nebraska Probate Code.

Source:Laws 1981, LB 9, § 8.


Cross References

76-1515. Agricultural land; restrictions on ownership; exceptions.

No trust, other than a family trust, authorized trust, or testamentary trust, shall either directly or indirectly acquire or otherwise obtain or lease any agricultural land in this state, except that the restrictions set forth in this section shall not apply to the following:

(1) A bona fide encumbrance taken for purposes of security;

(2) Agricultural land acquired by a trust for research or experimental purposes, if the commercial sales from such agricultural land are incidental to the research or experimental objectives of the trust, and agricultural land acquired for the purpose of testing, developing, or producing seeds, animals, or plants for sale or resale to farmers or for purposes incidental to such purposes. Commercial sales are incidental to the research or experimental objectives of the trust when they are less than twenty-five percent of the gross sales of the primary product of the research;

(3) Agricultural land which is acquired by a trust company or bank in a fiduciary capacity or as trustee for a family trust, authorized trust, or testamentary trust;

(4) Agricultural land held or leased by a trust on August 30, 1981, as long as the trust holding or leasing such land on such date continues to hold or lease such agricultural land;

(5) Agricultural land acquired by a trust for immediate use in nonfarming purposes; and

(6) Any property held by the State of Nebraska.

Source:Laws 1981, LB 9, § 9.


76-1516. Violations; penalty; injunction; Attorney General, county attorney, duties.

Any trust, other than a family trust, authorized trust, or testamentary trust, violating sections 76-1507 to 76-1516 shall upon conviction be punished by a fine of not more than fifty thousand dollars and shall divest itself of any land acquired in violation of sections 76-1507 to 76-1516 within one year after conviction. The courts of this state may prevent and restrain violations of this section through the issuance of an injunction. The Attorney General or a county attorney shall institute suits on behalf of the state to prevent and restrain violations of sections 76-1507 to 76-1516.

Source:Laws 1981, LB 9, § 10; Laws 2011, LB160, § 2.    


76-1517. Repealed. Laws 2011, LB 160, § 5.

76-1518. Repealed. Laws 1986, Third Spec. Sess., LB 3, § 21.

76-1519. Repealed. Laws 1986, Third Spec. Sess., LB 3, § 21.

76-1520. Interest in real estate used for farming or ranching; reports required.

(1) A person serving as the president, a general partner, any other officer, or an authorized representative of a corporation, limited partnership, limited liability partnership, or limited liability company or a corporate trustee of a trust shall report to the Secretary of State:

(a) Any interest in real estate held by the corporation, limited partnership, limited liability partnership, limited liability company, or trust used for farming or ranching in this state as defined under Article XII, section 8, of the Constitution of Nebraska;

(b) Any activity or enterprise performed, conducted, or engaged in by the corporation, limited partnership, limited liability partnership, limited liability company, or trust defined as farming or ranching in this state under Article XII, section 8, of the Constitution of Nebraska; and

(c) Whether the corporation, limited partnership, limited liability partnership, limited liability company, or trust contracts with others engaged in farming or ranching for the care or production of agricultural commodities, including livestock.

(2) The reports required by this section shall be open to the public.

(3) For purposes of sections 76-1520 to 76-1524, interest in real estate used for farming or ranching includes legal, beneficial, and other interests, including interests held by a corporation, limited partnership, limited liability partnership, limited liability company, or trust in a general partnership holding real estate used for farming or ranching, but does not include an interest in real estate used for farming or ranching acquired by a corporation, limited partnership, limited liability partnership, limited liability company, or trust by process of law in the collection of debts or by any procedures for the creation or enforcement of a lien, encumbrance, or claim on the real estate, whether created by mortgage or otherwise.

Source:Laws 1998, LB 1193, § 1.


76-1521. Reports; form; contents; Secretary of State; duties.

(1) The report required by section 76-1520 shall be on a form provided by the Secretary of State. The Secretary of State may incorporate the form with other forms required to be filed by entities identified in subsection (1) of section 76-1520. If there has been no change in the information contained in the previous report filed by the reporting entity, the reporting entity may so indicate in a space provided on the reporting form for that purpose.

(2) The Secretary of State shall include a list of exemptions to the prohibitions contained in Article XII, section 8, of the Constitution of Nebraska and a means by which persons filing the form may indicate, if applicable, which exemptions apply to the reporting entity. The reporting entity may include or attach a statement indicating the basis upon which the reporting entity claims exemption from the prohibitions contained in Article XII, section 8, of the Constitution of Nebraska.

(3) The Secretary of State shall annually prepare a report indicating the total number of entities reporting under sections 76-1520 to 76-1524, the number of entities reporting as a corporation, as a limited partnership, as a limited liability partnership, as a limited liability company, and as a trust and the basis upon which the reporting entities claim exemption from the prohibitions contained in Article XII, section 8, of the Constitution of Nebraska. The Secretary of State shall deliver the report electronically to the Clerk of the Legislature on or before January 1 each year.

Source:Laws 1998, LB 1193, § 2; Laws 2012, LB782, § 134.    


76-1522. Failure to report; false report; effect; Secretary of State; duties; reinstatement; fee.

(1) Failure to report the information required by section 76-1520 or the filing of false information shall be cause for dissolution or cancellation of registration of the corporation, limited partnership, limited liability partnership, or limited liability company or revocation of authority to transact business in this state in the manner provided in this section.

(2) If the Secretary of State has reason to believe a corporation, limited partnership, limited liability partnership, or limited liability company required to report pursuant to section 76-1520 has failed to report, or has filed a false or incomplete report, the Secretary of State shall send to the registered agent of such entity by certified mail a notice stating that if the defect is not corrected within sixty days after receipt of notice the entity shall be dissolved or its registration shall be canceled.

(3) If the Secretary of State determines that the entity has not corrected the defect upon the expiration of sixty days after notice of failure to report, false reporting, or incomplete reporting, the entity shall be dissolved or its registration canceled. Notice of such cancellation shall be sent by certified mail to the registered agent of the entity.

(4) A business entity dissolved or canceled pursuant to this section may have its existence reinstated at any time by submitting a report as required by sections 76-1520 to 76-1524 correcting the defect for which it was dissolved and paying a reinstatement fee of one hundred dollars to the Secretary of State. Any fees received pursuant to this section shall be remitted to the State Treasurer for credit to the Corporation Cash Fund.

Source:Laws 1998, LB 1193, § 3.


76-1523. Corporate trustee; fine; when.

(1) Any corporate trustee failing to report the information required by section 76-1520 or filing false information shall be punished by a fine of not more than five hundred dollars.

(2) Any fines received pursuant to this section shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source:Laws 1998, LB 1193, § 4; Laws 2011, LB160, § 3.    


76-1524. Secretary of State; Attorney General; powers.

The Secretary of State and the Attorney General, for the enforcement of both sections 76-1520 to 76-1524 and Article XII, section 8, of the Constitution of Nebraska, shall have the authority to subpoena witnesses, compel their attendance, examine them under oath, and require the production of documents, records, or tangible things deemed relevant to the proper performance of their duties. Service of any subpoena shall be made in the manner prescribed by the rules of civil procedure.

Source:Laws 1998, LB 1193, § 5.


76-1601. Act, how cited.

Sections 76-1601 to 76-1609 shall be known and may be cited as the Self-Service Storage Facilities Act.

Source:Laws 2017, LB492, § 1.    
Effective Date: August 24, 2017


76-1602. Terms, defined.

For purposes of the Self-Service Storage Facilities Act:

(1) Commercially reasonable sale means a sale that (a) is conducted at the self-service storage facility or on a publicly accessible web site that conducts lien sales and (b) is attended by at least three persons who appear personally, online, by telephone, or by any other method;

(2) Default means the failure to perform on time any obligation or duty set forth in a rental agreement;

(3) Electronic mail means an electronic message or an executable program or computer file that contains an image of a message that is transmitted between two or more computers or electronic terminals and includes electronic messages that are transmitted within or between computer networks;

(4) Emergency means any sudden, unexpected occurrence or circumstance at or near a self-service storage facility that requires immediate action to avoid injury to persons or property at or near the self-service storage facility, including, but not limited to, a fire;

(5) Last-known address means the postal address or electronic mail address provided by an occupant in a rental agreement or the postal address or electronic mail address provided by the occupant in a subsequent written notice of a change of address;

(6) Leased space means the individual storage space at a self-service storage facility which is rented to an occupant pursuant to a rental agreement;

(7) Occupant means a person entitled to the use of leased space at a self-service storage facility under a rental agreement or his or her successors or assigns;

(8) Operator means the owner, operator, lessor, or sublessor of a self-service storage facility or an agent or any other person authorized to manage the facility. Operator does not include a warehouseman if the warehouseman issues a warehouse receipt, bill of lading, or other document of title for the personal property stored;

(9) Personal property means movable property not affixed to land. Personal property includes, but is not limited to, goods, wares, merchandise, motor vehicles, watercraft, household items, and furnishings;

(10) Property which has no commercial value means property offered for sale in a commercially reasonable sale that receives no bid or offer;

(11) Rental agreement means any written agreement or lease that establishes or modifies the terms, conditions, or rules concerning the use and occupancy of a self-service storage facility;

(12) Self-service storage facility means any real property used for renting or leasing individual storage spaces in which the occupants customarily store and remove their own personal property on a self-service basis; and

(13) Verified mail means any method of mailing offered by the United States Postal Service that provides evidence of the mailing.

Source:Laws 2017, LB492, § 2.    
Effective Date: August 24, 2017


76-1603. Operator; duty.

(1) An operator shall not knowingly permit a leased space at a self-service storage facility to be used for residential purposes.

(2) An occupant shall not use a leased space for residential purposes.

Source:Laws 2017, LB492, § 3.    
Effective Date: August 24, 2017


76-1604. Entry for inspection or repair.

An occupant, upon reasonable request from the operator, shall allow the operator to enter a leased space for the purpose of inspection or repair. If an emergency occurs, an operator may enter a leased space for inspection or repair without notice to or consent from the occupant.

Source:Laws 2017, LB492, § 4.    
Effective Date: August 24, 2017


76-1605. Operator; lien on personal property; rental agreement; contents.

(1) The operator of a self-service storage facility and the operator's heirs, executors, administrators, successors, and assigns shall have a lien upon all of an occupant's personal property located at the self-service storage facility for delinquent rent, late fees, labor, or other charges incurred pursuant to a rental agreement and for expenses incurred for preservation, sale, or disposition of the personal property. The lien established by this subsection shall have priority over all other liens except for tax liens and liens or security interests of any lienholder or security interest holder of record on such personal property that are perfected or recorded prior to, on, or after the date on which the personal property is placed in a leased space.

(2) The lien described in subsection (1) of this section attaches on the date on which personal property is placed in a leased space.

(3) The rental agreement shall contain a statement, in bold type, advising the occupant:

(a) Of the existence of the lien; and

(b) That personal property stored in the leased space may be sold to satisfy the lien if the occupant is in default.

(4) If the rental agreement specifies a limit on the value of personal property that the occupant may store in the leased space, such limit shall be deemed to be the maximum value of the personal property in the occupant's leased space.

Source:Laws 2017, LB492, § 5.    
Effective Date: August 24, 2017


76-1606. Default; deny access.

If any part of the rent or other charges due from the occupant are in default, the operator shall have the right to deny the occupant access to the leased space at the self-service storage facility.

Source:Laws 2017, LB492, § 6.    
Effective Date: August 24, 2017


76-1607. Default for more than forty-five days; enforcement of lien; procedure; advertisement; sale; application of proceeds; rights of purchaser; notices; liability of operator.

(1) If an occupant is in default for a period of more than forty-five days, the operator may enforce the lien granted in section 76-1605 by selling the occupant's stored personal property for cash. Sale of the occupant's personal property may be by public or private proceedings. Such personal property may be sold as a unit or in parcels, by way of one or more contracts, at any time or place, and on any terms as long as the sale is a commercially reasonable sale. The operator may otherwise dispose of any property which has no commercial value.

(2) Before conducting a sale under this section, the operator shall:

(a) At least forty-five days before the sale, send notice of default to the occupant by verified mail or electronic mail pursuant to subdivision (8)(a) of this section. The notice of default shall include:

(i) A statement that the contents of the occupant's leased space are subject to the operator's lien;

(ii) A statement of the operator's claim, indicating the charges due on the date of the notice, the amount of any additional charges which shall become due before the date of sale, and the date such additional charges shall become due;

(iii) A demand for payment of the charges due within a specified time, which shall not be less than ten days after the date of the notice;

(iv) A statement that unless the claim is paid within the time stated, the contents of the occupant's leased space will be sold after a specified time; and

(v) The name, street address, and telephone number of the operator or a designated agent whom the occupant may contact to respond to the notice; and

(b) At least seven days before the sale, advertise the time, place, and terms of the sale in any commercially reasonable manner. The manner of advertisement is deemed commercially reasonable if at least three independent bidders attend the sale in person or online at the time and place advertised. A copy of the advertisement of sale shall be provided at least seven days before the sale to the holder of any lien or security interest of record on the personal property being sold.

(3) The operator may buy the occupant's personal property at any public sale held pursuant to this section.

(4) If the personal property subject to the operator's lien is a vehicle, watercraft, or trailer and rent and other charges remain unpaid for sixty days, the operator may have the vehicle, watercraft, or trailer towed from the self-service storage facility. The operator shall not be liable for any damages to the vehicle, watercraft, or trailer once the tower takes possession of the property. Removal of any vehicle, watercraft, or trailer from the self-service storage facility shall not release the operator's lien.

(5) At any time before a sale is held under this section or before a vehicle, watercraft, or trailer is towed under this section, the occupant may pay the amount necessary to satisfy the lien and redeem the occupant's personal property.

(6) If a sale is held under this section, the operator shall:

(a) Apply the proceeds of the sale in the following order:

(i) To satisfy the actual expenses incurred in conducting the sale, including the costs for notice and advertisement of the sale, in an amount not to exceed five hundred dollars;

(ii) To satisfy the obligations secured by the lien or security interest of any lienholder or security interest holder of record; and

(iii) To satisfy the operator’s lien; and

(b) Hold the balance of the proceeds remaining after the disbursements described in subdivision (6)(a) of this section, if any, for delivery on demand to the occupant for a period of one year after the date of such sale. The operator shall have no liability to any party for excess proceeds paid to the occupant. After the one-year period, any remaining proceeds shall be considered abandoned property to be reported and paid to the State Treasurer in accordance with the Uniform Disposition of Unclaimed Property Act.

(7) A purchaser in good faith of any personal property sold pursuant to this section to satisfy the lien granted in section 76-1605 takes the property free and clear of any rights of persons against whom the lien was valid. If the property is a vehicle, watercraft, or trailer, such sale shall extinguish any lien or security interest in the property of any holder of such lien or security interest to whom notice of the sale was sent in compliance with this section.

(8)(a) Notices to the occupant under subdivision (2)(a) of this section shall be sent to the occupant's last-known address by verified mail or electronic mail. Notices sent by verified mail shall be deemed delivered when deposited with the United States Postal Service if they are properly addressed with postage prepaid. Notices sent by electronic mail shall be deemed delivered when an electronic message is sent to the last-known address provided by the occupant. If the operator sends notice by electronic mail and receives an automated message stating that the electronic mail cannot be delivered, the operator shall send notice by verified mail to the occupant’s last-known address with postage prepaid.

(b) The copy of the advertisement of sale provided to the holder of any lien or security interest of record under subdivision (2)(b) of this section shall be sent to the last-known address of the lienholder or security interest holder by United States mail. The copy of the advertisement shall be deemed delivered when deposited with the United States Postal Service if it is properly addressed with postage prepaid.

(9) If the operator complies with the requirements of this section, the operator's liability:

(a) To the occupant shall be limited to the net proceeds received from the sale of the occupant's personal property less any proceeds paid to the holders of any lien or security interest of record on the personal property being sold; and

(b) To the holders of any lien or security interest of record on the personal property being sold shall be limited to the net proceeds received from the sale of any personal property covered by the holder's lien or security interest.

Source:Laws 2017, LB492, § 7.    
Effective Date: August 24, 2017


Cross References

76-1608. Occupant's care, custody, and control of personal property.

Unless the rental agreement specifically provides otherwise and until a lien sale under section 76-1607, the exclusive care, custody, and control of all personal property stored in a leased space remains vested in the occupant.

Source:Laws 2017, LB492, § 8.    
Effective Date: August 24, 2017


76-1609. Act; how construed.

The Self-Service Storage Facilities Act does not impair the power of the parties to a rental agreement to create rights, duties, or obligations that do not arise from the act. The rights provided to an operator by the act are in addition to all other rights provided by law to a creditor against a debtor.

Source:Laws 2017, LB492, § 9.    
Effective Date: August 24, 2017


76-1701. Act, how cited.

Sections 76-1701 to 76-1741 shall be known and may be cited as the Nebraska Time-Share Act.

Source:Laws 1980, LB 945, § 1; Laws 2001, LB 68, § 1.    


76-1702. Terms, defined.

For purposes of the Nebraska Time-Share Act, unless the context otherwise requires:

(1) Acquisition agent means a person who by means of telephone, mail, advertisement, inducement, solicitation, or otherwise attempts directly to encourage any person to attend a sales presentation for a time-share program;

(2) Commission means the State Real Estate Commission;

(3) Developer means in the case of any given property, any person or entity which is in the business of creating or which is in the business of selling its own time-share intervals in any time-share program, but does not include a person acting solely as a sales agent;

(4) Development, project, or property means all of the real property subject to a project instrument and containing more than one unit;

(5) Exchange agent means a person who exchanges or offers to exchange time-share intervals in an exchange program with other time-share intervals;

(6) Managing agent means a person who undertakes the duties, responsibilities, and obligations of the management of a time-share program;

(7) Offering means any offer to sell, solicitation, inducement, or advertisement whether by radio, television, newspaper, magazine, mail, or any other means of communication, whereby a person is given an opportunity to acquire a time-share interval;

(8) Person means one or more natural persons, corporations, partnerships, limited liability companies, associations, trusts, other entities, or any combination thereof;

(9) Project instrument means one or more recordable documents applicable to the whole project by whatever name denominated, containing restrictions or covenants regulating the use, occupancy, or disposition of an entire project, including any amendments to the document, but excluding any law, ordinance, or governmental regulation;

(10) Public-offering statement means that statement required by sections 76-1713 and 76-1714;

(11) Purchaser means any person other than a developer or lender who acquires an interest in a time-share interval;

(12) Sales agent means a person, licensed by the commission as a real estate broker or salesperson, who sells or offers to sell time-share intervals in a time-share program to a purchaser;

(13) Time-share estate means an ownership or leasehold estate in property devoted to a time-share fee or a time-share lease;

(14) Time-share instrument means any document by whatever name denominated creating or regulating time-share programs, but excluding any law, ordinance, or governmental regulation;

(15) Time-share interval means a time-share estate or a time-share use;

(16) Time-share program means any arrangement for time-share intervals in a time-share project whereby the use, occupancy, or possession of real property has been made subject to either a time-share estate or time-share use whereby such use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis occurring annually over any period of time in excess of three years in duration;

(17) Time-share project means any real property that is subject to a time-share program;

(18) Time-share use means any contractual right of exclusive occupancy which does not fall within the definition of a time-share estate, including, without limitation, a vacation license, prepaid hotel reservation, club membership, limited partnership, or vacation bond; and

(19) Unit means the real property or real property improvement in a project which is divided into time-share intervals.

Source:Laws 1980, LB 945, § 2; Laws 1993, LB 121, § 486; Laws 2001, LB 68, § 2.    


76-1703. Time-share estate; status with respect to real property interests.

(1) A time-share estate is an estate in real property and has the character and incidents of an estate in fee simple at common law or estate for years, if a leasehold, except as expressly modified by the Nebraska Time-Share Act.

(2) A document transferring or encumbering a time-share estate in real property shall not be rejected for recordation because of the nature or duration of the estate or interest.

Source:Laws 1980, LB 945, § 3; Laws 2001, LB 68, § 3.    


76-1704. Time-share estate; title; separate estate.

Each time-share estate constitutes for purposes of title a separate estate or interest in property except for real property tax purposes.

Source:Laws 1980, LB 945, § 4.


76-1705. Time-share program; discriminatory ordinance or regulation; prohibited.

A zoning, subdivision, or other ordinance or regulation shall not discriminate against the creation of time-share intervals or impose any requirement upon a time-share program which it would not impose upon a similar development under a different form of ownership.

Source:Laws 1980, LB 945, § 5.


76-1706. Time-share intervals in units.

A time-share program may be created in any unit unless expressly prohibited by the project instruments.

Source:Laws 1980, LB 945, § 6.


76-1707. Instruments for time-share estates; contents.

Project instruments and time-share instruments creating time-share estates shall contain the following:

(1) The name of the county in which the property is situated;

(2) The legal description, street address, or other description sufficient to identify the property;

(3) Identification of time periods by letter, name, number, or combination thereof;

(4) Identification of time-share estates and when applicable the method whereby additional time-share estates may be created;

(5) The formula, fraction, or percentage of the common expenses and any voting rights assigned to each time-share estate and when applicable, to each unit in a project that is not subject to the time-share program;

(6) Any restrictions on the use, occupancy, alteration, or alienation of time-share intervals;

(7) The ownership interest if any in personal property and provisions for care and replacement; and

(8) Any other matters the developer deems appropriate.

Source:Laws 1980, LB 945, § 7.


76-1708. Time-share estate program; instruments; management and operation provisions; enumerated.

The time-share instruments for a time-share estate program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units, which shall include, but not be limited to, provisions for the following:

(1) Creation of an association of time-share estate owners;

(2) Adoption of bylaws for organizing and operating the association;

(3) Payment of costs and expenses of operating the time-share program and owning and maintaining the units;

(4) Employment and termination of employment of the managing agent for the association;

(5) Preparation and dissemination to owners of an annual budget and of operating statements and other financial information concerning the time-share program;

(6) Adoption of standards and rules of conduct for the use and occupancy of units by owners;

(7) Collection of assessments from owners to defray the expenses of management of the time-share program and maintenance of the units;

(8) Comprehensive general liability insurance for death, bodily injury, and property damage arising out of, or in connection with, the use of units by owners, their guests, and other users;

(9) Methods for providing compensating-use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by confirmed reservation except for unavailability as a result of acts of nature;

(10) Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with provisions of the time-share instruments or the rules of the association with respect to the use of the units. An owner shall be given notice and the opportunity to refute or explain the charges against him or her in person or in writing to the governing body of the association before a decision to impose discipline is rendered except in the case of delinquent payment of assessments, in which case an owner's rights and privileges for use of the accommodations and facilities of the time-share program, including the owner's guests, lessees, and third parties receiving use rights through a nonaffiliated exchange program, may be suspended by no less than thirty days' written notice after the date the assessment is due to the owner, stating the total amount of any delinquency which then exists, including any accrued interest or late charges permitted to be imposed under the terms of the time-share program. The notice shall clearly state that the owner and those claiming under the owner will not be permitted to use the owner's time-share period or to make a reservation in the time-share program's reservation system, or that any confirmed reservation may be canceled as applicable, until the total amount of such delinquency is satisfied in full or until the owner produces satisfactory evidence that the delinquency does not exist. Suspension of a third party receiving use rights through an affiliated exchange program shall only be suspended upon additional notice to the affiliated exchange program within a reasonable time that protects the third party's rights to make alternate reservations;

(11) Employment of attorneys, accountants, and other professional persons as necessary to assist in the management of the time-share program and the units; and

(12) Maintenance of a list of the names and mailing addresses of all current time-share estate owners in the time-share program and procedures to have the association promptly mail materials to all persons on such list upon a written request by a time-share estate owner if the purpose of the request is to advance legitimate association business, including proxy solicitation. The association may require the actual costs of performing the mailing to be paid in advance by the person requesting the mailing.

Source:Laws 1980, LB 945, § 8; Laws 2001, LB 68, § 4;    Laws 2004, LB 845, § 1.    


76-1709. Time-share estate program; instruments; developer-control period.

(1) The time-share instruments for a time-share estate program may provide for a period of time, known as the developer-control period, during which the developer or a managing agent selected by the developer shall manage the time-share program and the units in the time-share program.

(2) If the time-share instruments for a time-share estate program provide for the establishment of a developer-control period, they shall include, but not be limited to, provisions for the following:

(a) Termination of the developer-control period by action of the association;

(b) Termination of contracts for goods and services for the time-share program or for units in the time-share program entered into during the developer-control period; and

(c) A regular accounting by the developer to the association as to all matters that significantly affect the interests of owners in the time-share program.

Source:Laws 1980, LB 945, § 9.


76-1710. Instruments for time-share use; contents.

Project instruments and time-share instruments creating time-share uses shall contain the following:

(1) Identification by name of the time-share project and street address where the time-share project is situated;

(2) Identification of the time periods, type of units, and the units that are in the time-share program and the length of time that the units are committed to the time-share program;

(3) In case of a time-share project, identification of which units are in the time-share program and the method whereby any other units may be added, deleted, or substituted; and

(4) Any other matters that the developer deems appropriate.

Source:Laws 1980, LB 945, § 10.


76-1711. Time-share use program; instruments; management and operation provisions; enumerated.

The time-share instruments for a time-share use program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units which shall include, but not be limited to, provisions for the following:

(1) Standards and procedures for upkeep, repair, and interior furnishing of units and for providing of maid, cleaning, linen, and similar services to the units during use periods;

(2) Adoption of standards and rules of conduct governing the use and occupancy of units by owners;

(3) Payment of the costs and expenses of operating the time-share program and owning and maintaining the units;

(4) Selection of a managing agent to act on behalf of the developer;

(5) Preparation and dissemination to owners of an annual budget and of operating statements and other financial information concerning the time-share program;

(6) Procedures for establishing the rights of owners to the use of units by prearrangement or under a first-reserved, first-served priority system;

(7) Organization of a management advisory board consisting of time-share use owners including an enumeration of rights and responsibilities of the board;

(8) Procedures for imposing and collecting assessments or use fees from time-share use owners as necessary to defray costs of management of the time-share program and in providing materials and services to the units;

(9) Comprehensive general liability insurance for death, bodily injury, and property damage arising out of, or in connection with, the use of units by time-share use owners, their guests, and other users;

(10) Methods for providing compensating-use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by a confirmed reservation except for unavailability as a result of acts of nature;

(11) Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with the provisions of the time-share instruments or the rules established by the developer with respect to the use of the units. The owner shall be given notice and the opportunity to refute or explain the charges in person or in writing to the management advisory board before a decision to impose discipline is rendered except in the case of delinquent payment of assessments, in which case an owner's rights and privileges for use of the accommodations and facilities of the time-share program, including the owner's guests, lessees, and third parties receiving use rights through a nonaffiliated exchange program, may be suspended by no less than thirty days' written notice after the date the assessment is due to the owner, stating the total amount of any delinquency which then exists, including any accrued interest or late charges permitted to be imposed under the terms of the time-share program. The notice shall clearly state that the owner and those claiming under the owner will not be permitted to use the owner's time-share period or to make a reservation in the time-share program's reservation system, or that any confirmed reservation may be canceled as applicable, until the total amount of such delinquency is satisfied in full or until the owner produces satisfactory evidence that the delinquency does not exist. Suspension of a third party receiving use rights through an affiliated exchange program shall only be suspended upon additional notice to the affiliated exchange program within a reasonable time that protects the third party's rights to make alternate reservations; and

(12) Maintenance of a list of the names and mailing addresses of all current time-share use owners in the time-share program and procedures to have a prompt mailing of materials to all persons on such list upon a written request by a time-share use owner if the purpose of the request is to advance legitimate business affecting such time-share use owners, including proxy solicitation. The managing agent may require the actual costs of performing the mailing to be paid in advance by the person requesting the mailing.

Source:Laws 1980, LB 945, § 11; Laws 2001, LB 68, § 5;    Laws 2004, LB 845, § 2.    


76-1712. Partition.

No action for partition of a unit may be maintained except as permitted by the time-share instrument.

Source:Laws 1980, LB 945, § 12.


76-1713. Public-offering statement; general provisions; enumerated.

A public-offering statement shall be provided to each purchaser of a time-share interval at the time of purchase and shall fully and accurately disclose:

(1) The name of the developer and the principal address of the developer and the time-share intervals offered in the statement;

(2) A general description of the units including, without limitation, the developer's schedule of commencement and completion of all buildings, units, and amenities or if completed that they have been completed;

(3) As to all units offered by the developer in the same time-share project: (a) The types and number of units; (b) identification of units that are subject to time-share intervals; and (c) the estimated number of units that may become subject to time-share intervals;

(4) A brief description of the project;

(5) If applicable, any current budget and a projected budget for the time-share intervals for one year after the date of the first transfer to a purchaser. The budget shall include, without limitation: (a) A statement of the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement; (b) the projected common expense liability if any by category of expenditures for the time-share intervals; (c) the projected common expense liability for all time-share intervals; and (d) a statement of any services not reflected in the budget that the developer provides or expenses that it pays;

(6) Any initial or special fee due from the purchaser at closing, together with a description of the purpose and method of calculating the fee;

(7) A description of any liens, defects, or encumbrances on or affecting the title to the time-share intervals;

(8) A description of any financing offered by the developer;

(9) A statement that within three business days after receipt of the public-offering statement a purchaser may cancel any contract for purchase of a time-share interval from a developer;

(10) A statement of any pending suits material to the time-share intervals of which a developer has actual knowledge;

(11) Any restraints on alienation of any number or portion of any time-share intervals;

(12) A description of the insurance coverage, or a statement that there is no insurance coverage, provided for the benefit of time-share interval owners;

(13) Any current or expected fees or charges to be paid by time-share interval owners for the use of any facilities related to the property;

(14) The extent to which financial arrangements have been provided for completion of all promised improvements; and

(15) The extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other owners of the same unit.

Source:Laws 1980, LB 945, § 13; Laws 2001, LB 68, § 6.    


76-1714. Public-offering statement; exchange-of-occupancy rights; disclosure provisions.

If the owners of time-share intervals are to be permitted or required to become members of or to participate in any program for the exchange-of-occupancy rights among themselves or with the owners of time-share intervals of other time-share projects, or both, the public-offering statement or a supplement delivered therewith shall fully and accurately disclose:

(1) The identity of the person operating the exchange program and whether that person is an affiliate of the developer;

(2) A general description of the procedures to qualify for and effectuate exchanges, including any stated or practiced priorities and restrictions, and the extent to which changes thereof may be made, whether membership or participation in the exchange program, or both, are voluntary or mandatory, and a statement of the disposition, if any, of the unused exchange time-share interval of the exchange agent;

(3) The expenses, or ranges of expenses, to the time-share interval owners of membership in the exchange program including the expenses, if any, of exchanging as of a date not more than one year before the public-offering statement is delivered to the purchaser, and the person to whom those expenses are payable;

(4) Whether and how any of the expenses specified in subdivision (3) of this section may be altered and, if any of them are to be fixed on a case-by-case basis, the manner in which they are to be fixed in each case;

(5) With respect to the owners of time-share intervals in the exchange program, the geographical location of each time-share project and the minimum duration of time-share intervals and number of time-share interval owners in the exchange program at each project during a calendar year ending not more than fifteen months before the public-offering statement is delivered to the purchaser;

(6) The percentage of exchanges properly applied for by members of participants in the exchange program that were fulfilled during a calendar year ending not more than fifteen months before the date the public-offering statement is delivered to the purchaser, together with a statement of the criteria used to determine whether an exchange was properly applied for and fulfilled;

(7) The number of persons applying for an exchange as a percentage of the number of members in the exchange program as a whole during the calendar year ending not more than fifteen months before the public-offering statement is delivered to the purchaser; and

(8) In those cases in which the exchange agent is not an affiliate of the developer, the exchange agent shall provide the developer with all of the information contained in subdivisions (2) to (7) of this section which it shall certify as being true, accurate, and complete in all particulars. The developer shall include the certified information in the public-offering statement as replacement for the developer's disclosures required by this section.

Source:Laws 1980, LB 945, § 14.


76-1715. Escrow of deposits; surety bond.

(1) Any deposit made in connection with the purchase or reservation of a time-share interval from a developer shall be placed in escrow, in an account designated solely for that purpose, in an institution whose accounts are insured by a governmental agency or instrumentality, until (a) delivered to the developer at the expiration of the time for rescission or any later time specified in any contract or sale, (b) delivered to the developer because of the purchaser's default under a contract to purchase the time-share interval, or (c) refunded to the purchaser. The developer shall register such escrow bank account with the commission and authorize the commission to examine the account.

(2) The escrow account shall be held in this state, except that the escrow account may be held in another state where the time-share project is located if (a) the account is designated solely for that purpose and is insured by a governmental agency or instrumentality, (b) the escrow agent is subject to the personal jurisdiction and venue of the district court in Nebraska located in the county of the purchaser's residence or principal office, and (c) the commission is authorized to examine the account.

(3) In lieu of placing deposits in an escrow account, the commission may accept from the developer a surety bond, issued by a company authorized and licensed to do business in this state, in an amount equal to fifty thousand dollars to cover any default by the developer to refund a deposit made in connection with a purchase or reservation of a time-share interval.

Source:Laws 1980, LB 945, § 15; Laws 2001, LB 68, § 7.    


76-1716. Mutual right of cancellation.

(1) Before transfer of a time-share interval and no later than the date of any sales contract, the developer shall provide the intended transferee with a copy of the public-offering statement and any amendments and supplements thereto. The contract shall be voidable by the purchaser until he or she has received the public-offering statement and for three business days thereafter. Cancellation shall be without penalty, and all payments made by the purchaser before cancellation shall be refunded within thirty days after receipt of the notice of cancellation as provided in subsection (3) of this section.

(2) Up to three business days after the receipt by the purchaser of the public-offering statement, the developer may cancel the contract of purchase without penalty to either party. The developer shall return all payments made and the purchaser shall return all materials received in good condition, reasonable wear and tear excepted. If such materials are not returned, the developer may deduct the cost of the same and return the balance to the purchaser.

(3) If either party elects to cancel a contract pursuant to subsection (1) or (2) of this section, he or she may do so by hand-delivering notice thereof to the other party or by mailing notice thereof by prepaid United States mail to the other party or to his or her agent for service of process.

Source:Laws 1980, LB 945, § 16; Laws 2001, LB 68, § 8.    


76-1717. Other filings not required; not treated as a security.

(1) Any time-share program registered with the commission in which a public-offering statement has been prepared does not require registration under any other state statute.

(2) Any time-share program that fails to restrict the price at which an owner may sell or exchange his or her time-share interval shall not by virtue of such failure cause the time-share interval to become a security under the Securities Act of Nebraska nor shall an exchange agent offering such a time-share interval for exchange be construed to be offering a security under such act.

Source:Laws 1980, LB 945, § 17.


Cross References

76-1718. Public-offering statement; not required; when.

The developer shall not be required to prepare and distribute a public-offering statement if the developer has registered and there has been issued a public-offering statement or similar disclosure document which is provided to purchasers under the following:

(1) The Securities and Exchange Act of 1933;

(2) The federal Interstate Land Sales Full Disclosure Act in which the time-share program is made a part of the subdivision that is being registered; or

(3) Any federal act or act of the state where the time-share project is located which requires a federal or state public-offering statement or similar disclosure document to be prepared and provided to purchasers.

Source:Laws 1980, LB 945, § 18; Laws 2001, LB 68, § 9.    


76-1719. Public-offering statement; cases in which not required.

A public-offering statement need not be prepared or delivered in the case of:

(1) Any transfer of a time-share interval by any time-share interval owner other than the developer or his or her agent;

(2) Any disposition pursuant to court order;

(3) A disposition by a government or governmental agency;

(4) A disposition by foreclosure or deed in lieu of foreclosure;

(5) A disposition of a time-share interval in a time-share project situated wholly outside this state if all solicitations, negotiations, offerings, and contacts took place wholly outside this state and the contract was executed wholly outside this state;

(6) A gratuitous transfer of a time-share interval; or

(7) Group reservations made for fifteen or more people as a single transaction between a hotel and travel agent or travel groups for hotel accommodations, when deposits are made and held for more than three years in advance.

Source:Laws 1980, LB 945, § 19; Laws 2001, LB 68, § 10.    


76-1720. Public-offering statement; material change; amend or supplement.

The developer shall amend or supplement the public-offering statement to report any material change in the information required by sections 76-1713 and 76-1714. As to any exchange program, the developer shall use the current written materials that are supplied to it for distribution to the time-share interval owners as it is received.

Source:Laws 1980, LB 945, § 20.


76-1721. Liens.

(1) Unless the purchaser expressly agrees to take subject to or assume a lien prior to transferring a time-share interval other than by deed in lieu of foreclosure, the developer shall record or furnish to the purchaser releases of all liens affecting that time-share interval, or shall provide a surety bond or insurance against the lien.

(2) Unless a time-share interval owner or his or her predecessor in title agree otherwise with the lienor, if a lien other than an underlying mortgage or deed of trust becomes effective against more than one time-share interval in a time-share project, any time-share interval owner is entitled to a release of his or her time-share interval from the lien upon payment of the amount of the lien attributable to his or her time-share interval. The amount of the payment shall be proportionate to the ratio that the time-share interval owner's liability bears to the liabilities of all time-share interval owners whose interests are subject to the lien. Upon receipt of payment, the lienholder shall promptly deliver to the time-share interval owner a release of the lien covering that time-share interval. After payment, the managing entity shall not assess or have a lien against that time-share interval for any portion of the expenses incurred in connection with that lien.

Source:Laws 1980, LB 945, § 21.


76-1722. Effect of violation on rights of action; attorney's fees; violations; penalties; enforcement.

(1) If a developer or any other person subject to the Nebraska Time-Share Act violates any provision thereof or any provision of the project instruments, any person or class of persons damaged or otherwise adversely affected by the violation shall have a claim for appropriate relief, which may be brought in the county where the cause of action or part of the cause of action arose. The court may render any contract entered into in this state in violation of the act void and unenforceable and any money paid under such contract, together with interest at the rate of six percent per annum, may be recovered from the date of such payment or such violation, whichever is later. The court may also award such