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.
The provisions of sections 76-101 to 76-123 apply to corporations unless the context indicates a more limited applicability.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
Sections 76-101 to 76-123 may be referred to as the Uniform Property Act.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Estates may be created to commence at a future day.
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.
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.
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.
(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 ask whether the affidavit described in section 76-2,141 is required with respect to the deed, memorandum of contract, or land contract and, if so, whether such affidavit has been completed. 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.
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.
The grantor must acknowledge the instrument with an acknowledgment as defined in section 64-205.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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. The transfer of any debt secured by a mortgage shall also operate as a transfer of the security of such debt.
(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.
(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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Section 76-2803 shall govern the mortgagee's obligation to record or cause to be recorded a release of mortgage and the liability of the mortgagee for failure to timely record or cause to be recorded a release of mortgage.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Sections 76-201 to 76-281 and 76-2,126 apply to the conveyance of all claims and improvements upon the public lands.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
(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.
(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.
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.
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.
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.
(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.
Sections 76-2,111 to 76-2,118 shall be known and may be cited as the Conservation and Preservation Easements Act.
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.
(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.
For purposes of sections 76-2,121 to 76-2,123:
(1) Federally insured financial institution means an institution in which the monetary deposits are insured by the Federal Deposit Insurance Corporation or National Credit Union Administration;
(2) Good funds means: (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; (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; or (e) real-time or instant payments through the FedNow® Service of the United States Federal Reserve System or through the RTP® network of The Clearing House Payments Company L.L.C.;
(3) Real estate closing agent means a person who collects and disburses funds on behalf of another in closing a real estate transaction but does 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 means 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) Office of the Comptroller of the Currency;
(g) Consumer Financial Protection Bureau;
(h) Federal Farm Credit Administration; or
(i) National Credit Union Administration.
(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 one thousand 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 one thousand 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.
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.
(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.
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.
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.
Sections 76-2,127 to 76-2,140 shall be known and may be cited as the Uniform Easement Relocation Act.
In the Uniform Easement Relocation Act:
(1) Appurtenant easement means an easement tied to or dependent on ownership or occupancy of a unit or a parcel of real property.
(2) Conservation easement means a nonpossessory property interest created for one or more of the following conservation purposes:
(A) retaining or protecting the natural, scenic, wildlife, wildlife-habitat, biological, ecological, or open-space values of real property;
(B) ensuring the availability of real property for agricultural, forest, outdoor-recreational, or open-space uses;
(C) protecting natural resources, including wetlands, grasslands, and riparian areas;
(D) maintaining or enhancing air or water quality;
(E) preserving the historical, architectural, archeological, paleontological, or cultural aspects of real property; or
(F) any other purpose under the Conservation and Preservation Easements Act.
(3) Dominant estate means an estate or interest in real property benefited by an appurtenant easement.
(4) Easement means a nonpossessory property interest that:
(A) provides a right to enter, use, or enjoy real property owned by or in the possession of another; and
(B) imposes on the owner or possessor a duty not to interfere with the entry, use, or enjoyment permitted by the instrument creating the easement or, in the case of an easement not established by express grant or reservation, the entry, use, or enjoyment authorized by law.
(5) Easement holder means:
(A) in the case of an appurtenant easement, the dominant estate owner; or
(B) in the case of an easement in gross, public utility easement, conservation easement, or negative easement, the grantee of the easement or a successor.
(6) Easement in gross means an easement not tied to or dependent on ownership or occupancy of a unit or a parcel of real property.
(7) Lessee of record means a person holding a lessee's interest under a recorded lease or memorandum of lease.
(8) Negative easement means a nonpossessory property interest whose primary purpose is to impose on a servient estate owner a duty not to engage in a specified use of the estate.
(9) Person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(10) Public utility easement means a nonpossessory property interest in which the easement holder is a publicly regulated or publicly owned utility under federal law or law of this state or a municipality. The term includes an easement benefiting an intrastate utility, an interstate utility, or a utility cooperative.
(11) Real property means an estate or interest in, over, or under land, including structures, fixtures, and other things that by custom, usage, or law pass with a conveyance of land whether or not described or mentioned in the contract of sale or instrument of conveyance. The term includes the interest of a lessor and lessee and, unless the interest is personal property under law of this state other than the Uniform Easement Relocation Act, an interest in a common interest community.
(12) Record, used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(13) Security instrument means a mortgage, deed of trust, security deed, contract for deed, lease, or other record that creates or provides for an interest in real property to secure payment or performance of an obligation, whether by acquisition or retention of a lien, a lessor's interest under a lease, or title to the real property. The term includes:
(A) a security instrument that also creates or provides for a security interest in personal property;
(B) a modification or amendment of a security instrument; and
(C) a record creating a lien on real property to secure an obligation under a covenant running with the real property or owed by a unit owner to a common interest community association.
(14) Security interest holder of record means a person holding an interest in real property created by a recorded security instrument.
(15) Servient estate means an estate or interest in real property that is burdened by an easement.
(16) Title evidence means a title insurance policy, preliminary title report or binder, title insurance commitment, abstract of title, attorney's opinion of title based on examination of public records or an abstract of title, or any other means of reporting the state of title to real property which is customary in the locality.
(17) Unit means a physical portion of a common interest community designated for separate ownership or occupancy with boundaries described in a declaration establishing the common interest community.
(18) Utility cooperative means a nonprofit entity whose purpose is to deliver a utility service, such as electricity, oil, natural gas, water, sanitary sewer, storm water, or telecommunications, to its customers or members and includes an electric cooperative, rural electric cooperative, rural water district, and rural water association.
(a) Except as otherwise provided in subsection (b) of this section, the Uniform Easement Relocation Act applies to an easement established by express grant or reservation or by prescription, implication, necessity, estoppel, or other method.
(b) The Uniform Easement Relocation Act may not be used to relocate:
(1) a public utility easement, conservation easement, or negative easement;
(2) an easement or right-of-way held by a public power and irrigation district, irrigation district, reclamation district, or canal company; or
(3) an easement if the proposed location would encroach on an area of an estate burdened by a conservation easement or would interfere with the use or enjoyment of a public utility easement or an easement appurtenant to a conservation easement.
(c) The Uniform Easement Relocation Act does not apply to relocation of an easement by consent.
A servient estate owner may relocate an easement under the Uniform Easement Relocation Act only if the relocation does not materially:
(1) lessen the utility of the easement;
(2) after the relocation, increase the burden on the easement holder in its reasonable use and enjoyment of the easement;
(3) impair an affirmative, easement-related purpose for which the easement was created;
(4) during or after the relocation, impair the safety of the easement holder or another entitled to use and enjoy the easement;
(5) during the relocation, disrupt the use and enjoyment of the easement by the easement holder or another entitled to use and enjoy the easement, unless the servient estate owner substantially mitigates the duration and nature of the disruption;
(6) impair the physical condition, use, or value of the dominant estate or improvements on the dominant estate; or
(7) impair the value of the collateral of a security interest holder of record in the servient estate or dominant estate, impair a real property interest of a lessee of record in the dominant estate, or impair a recorded real property interest of any other person in the servient estate or dominant estate.
(a) To obtain an order to relocate an easement under the Uniform Easement Relocation Act, a servient estate owner must commence a civil action.
(b) A servient estate owner that commences a civil action under subsection (a) of this section:
(1) shall serve a summons and complaint on:
(A) the easement holder whose easement is the subject of the relocation;
(B) a security interest holder of record of an interest in the servient estate or dominant estate;
(C) a lessee of record of an interest in the dominant estate; and
(D) except as otherwise provided in subdivision (2) of this subsection, any other owner of a recorded real property interest if the relocation would encroach on an area of the servient estate or dominant estate burdened by the interest; and
(2) is not required to serve a summons and complaint on the owner of a recorded real property interest in oil, gas, or minerals unless the interest includes an easement to facilitate oil, gas, or mineral development.
(c) A complaint under this section must state:
(1) the intent of the servient estate owner to seek the relocation;
(2) the nature, extent, and anticipated dates of commencement and completion of the proposed relocation;
(3) the current and proposed locations of the easement;
(4) the reason the easement is eligible for relocation under section 76-2,129;
(5) the reason the proposed relocation satisfies the conditions for relocation under section 76-2,130; and
(6) that the servient estate owner has made a reasonable attempt to notify the holders of any public utility easement, conservation easement, or negative easement on the servient estate or dominant estate of the proposed relocation.
(d) At any time before the court renders a final order in an action under subsection (a) of this section, a person served under subdivision (b)(1)(B), (C), or (D) of this section may file a document, in recordable form, that waives its rights to contest or obtain relief in connection with the relocation or subordinates its interests to the relocation. On filing of the document, the court may order that the person is not required to answer or participate further in the action.
(a) The court may not approve relocation of an easement under the Uniform Easement Relocation Act unless the servient estate owner:
(1) establishes that the easement is eligible for relocation under section 76-2,129; and
(2) satisfies the conditions for relocation under section 76-2,130.
(b) An order under the Uniform Easement Relocation Act approving relocation of an easement must:
(1) state that the order is issued in accordance with the Uniform Easement Relocation Act;
(2) recite the recording data of the instrument creating the easement, if any, any amendments, and any notice as described under sections 76-288 to 76-298;
(3) identify the immediately preceding location of the easement;
(4) describe in a legally sufficient manner the new location of the easement;
(5) describe mitigation required of the servient estate owner during relocation;
(6) refer in detail to the plans and specifications of improvements necessary for the easement holder to enter, use, and enjoy the easement in the new location;
(7) specify conditions to be satisfied by the servient estate owner to relocate the easement and construct improvements necessary for the easement holder to enter, use, and enjoy the easement in the new location;
(8) include a provision for payment by the servient estate owner of expenses under section 76-2,133;
(9) include a provision for compliance by the parties with the obligation of good faith under section 76-2,134; and
(10) instruct the servient estate owner to record an affidavit, if required under subsection (a) of section 76-2,135, when the servient estate owner substantially completes relocation.
(c) An order under subsection (b) of this section may include any other provision consistent with the Uniform Easement Relocation Act for the fair and equitable relocation of the easement.
(d) Before a servient estate owner proceeds with relocation of an easement under the Uniform Easement Relocation Act, the owner must record, in the land records of each jurisdiction where the servient estate is located, a certified copy of the order under subsection (b) of this section.
A servient estate owner is responsible for reasonable expenses of relocation of an easement under the Uniform Easement Relocation Act, including the expense of:
(1) constructing improvements on the servient estate or dominant estate in accordance with an order under section 76-2,132;
(2) during the relocation, mitigating disruption in the use and enjoyment of the easement by the easement holder or another person entitled to use and enjoy the easement;
(3) obtaining a governmental approval or permit to relocate the easement and construct necessary improvements;
(4) preparing and recording the certified copy required by subsection (d) of section 76-2,132 and any other document required to be recorded;
(5) any title work required to complete the relocation or required by a party to the civil action as a result of the relocation;
(6) applicable premiums for title insurance related to the relocation;
(7) any expert necessary to review plans and specifications for an improvement to be constructed in the relocated easement or on the dominant estate and to confirm compliance with the plans and specifications referred to in the order under subdivision (b)(6) of section 76-2,132;
(8) payment of any maintenance cost associated with the relocated easement which is greater than the maintenance cost associated with the easement before relocation; and
(9) obtaining any third-party consent required to relocate the easement.
After the court, under section 76-2,132, approves relocation of an easement and the servient estate owner commences the relocation, the servient estate owner, the easement holder, and other parties in the civil action shall act in good faith to facilitate the relocation in compliance with the Uniform Easement Relocation Act.
(a) If an order under section 76-2,132 requires the construction of an improvement as a condition for relocation of an easement, relocation is substantially complete, and the easement holder is able to enter, use, and enjoy the easement in the new location, the servient estate owner shall:
(1) record, in the land records of each jurisdiction where the servient estate is located, an affidavit certifying that the easement has been relocated; and
(2) send, by certified mail, a copy of the recorded affidavit to the easement holder and parties to the civil action.
(b) Until an affidavit under subsection (a) of this section is recorded and sent, the easement holder may enter, use, and enjoy the easement in the current location, subject to the court's order under section 76-2,132 approving relocation.
(c) If an order under section 76-2,132 does not require an improvement to be constructed as a condition of the relocation, recording the order under subsection (d) of section 76-2,132 constitutes relocation.
(a) Relocation of an easement under the Uniform Easement Relocation Act:
(1) is not a new transfer or a new grant of an interest in the servient estate or the dominant estate;
(2) is not a breach or default of, and does not trigger, a due-on-sale clause or other transfer-restriction clause under a security instrument, except as otherwise determined by a court under law other than the Uniform Easement Relocation Act;
(3) is not a breach or default of a lease, except as otherwise determined by a court under law other than the Uniform Easement Relocation Act;
(4) is not a breach or default by the servient estate owner of a recorded document affected by the relocation, except as otherwise determined by a court under law other than the Uniform Easement Relocation Act;
(5) does not affect the priority of the easement with respect to other recorded real property interests burdening the area of the servient estate where the easement was located before the relocation; and
(6) is not a fraudulent conveyance or voidable transaction under law.
(b) The Uniform Easement Relocation Act does not affect any other method of relocating an easement permitted under law of this state other than the Uniform Easement Relocation Act.
The right of a servient estate owner to relocate an easement under the Uniform Easement Relocation Act may not be waived, excluded, or restricted by agreement even if:
(1) the instrument creating the easement prohibits relocation or contains a waiver, exclusion, or restriction of the Uniform Easement Relocation Act;
(2) the instrument creating the easement requires consent of the easement holder to amend the terms of the easement; or
(3) the location of the easement is fixed by the instrument creating the easement, another agreement, previous conduct, acquiescence, estoppel, or implication.
In applying and construing the Uniform Easement Relocation Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
The Uniform Easement Relocation Act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).
The Uniform Easement Relocation Act applies to an easement created before, on, or after August 28, 2021.
(1) For purposes of this section, covered real estate means real estate described in 31 C.F.R. 802.211(b)(3).
(2) Whenever there is a conveyance of covered real estate, the purchaser of the real estate shall complete and sign an affidavit stating that such purchaser is not affiliated with any foreign government or nongovernment person determined to be a foreign adversary pursuant to 15 C.F.R. 7.4.
(3) The affidavit shall be submitted to the register of deeds of the county in which the covered real estate is located. The register of deeds shall not record any instrument reflecting the conveyance of such real estate until he or she has received such affidavit. The register of deeds shall send a copy of the affidavit to the Attorney General.
(4) Any person who swears falsely on such an affidavit shall be guilty of a violation of section 28-915.01.
(5) The responsibility for determining whether an affidavit is required under this section rests solely with the purchaser, and no individual or entity other than the purchaser shall bear any civil or criminal liability under this section. A violation of this section shall not make any title or interest in land invalid or unmarketable.
(6) The affidavit required under this section shall be in substantially the following form:
| STATE OF NEBRASKA ) | |
| ) | ss. |
| COUNTY OF ....... ) |
I, .................. (Purchaser), certify under penalty of perjury that I am not affiliated with any foreign government or nongovernment person determined to be a foreign adversary pursuant to 15 C.F.R. 7.4.
| .............................. | ............... |
| Signature of Purchaser | Date |
(1) No person shall present for recording, cause to be presented for recording, or record in the office of the register of deeds or county clerk any (a) right-to-list home sale agreement as defined in section 81-885.01 or (b) lien or encumbrance resulting from such right-to-list home sale agreement.
(2) Any right-to-list home sale agreement as defined in section 81-885.01 or lien or encumbrance resulting from such right-to-list home sale agreement that is executed, modified, or extended after April 16, 2024, is void and unenforceable.
(3) If a right-to-list home sale agreement as defined in section 81-885.01 is recorded in this state, it shall not provide actual or constructive notice of such agreement against an otherwise bona fide purchaser or creditor.
(4) Any assignment or transfer of the right to provide any service under a real estate service agreement recorded prior to April 16, 2024, that would otherwise be in violation of this section is void and unenforceable without a written notice provided to and a written agreement by each party to such service agreement.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
A violation of section 76-502 or 76-504 shall be a Class III misdemeanor.
Sections 76-535 to 76-558 shall be known and may be cited as the Abstracters Act.
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.
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.
Any individual or business entity engaged in the business of abstracting in Nebraska shall comply with the Abstracters Act.
(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.
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.
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.
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 and shall not have been convicted of a felony. 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 administer the examination required for registered abstracters.
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.
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.
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.
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. 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.
(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.
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.
(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.
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 website in a printable format.
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.
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.
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.
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.
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.
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.
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.
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.
Sections 76-601 to 76-607 shall be known and may be cited as the Carbon Monoxide Safety Act.
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.
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.
(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.
(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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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 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.
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.
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.
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.
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.
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.
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.
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 filed 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.
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.
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.
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.
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.
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.
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.
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 filed 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.
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.
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.
(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.
Sections 76-801 to 76-823 shall be known as the Condominium Property Act.
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.
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.
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.
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.
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.
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.
(1) 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.
(2) The association of co-owners and board of administrators, or other administrative body governing the condominium, is responsible for maintenance, repair, and replacement of the common elements. Each co-owner of an apartment is responsible for maintenance, repair, and replacement of such co-owner's apartment.
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.
(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.
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.
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.
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.
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.
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.
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.
(1) The board of administrators or other administrative body 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.
(2) The association of co-owners and board of administrators, or other administrative body governing the condominium property regime, and its common elements, shall file with the register of deeds of the county in which the condominium is located a condominium statement listing the name of such board or other administrative body and the names and addresses of the current officers of such board or other administrative body. Such filing shall be made every year on or before December 31. The receipt of any legal notice by or service of process on such officer personally or at such officer's filed address shall constitute notice to the board or other administrative body administering the condominium and its common elements. If the board or other administrative body fails to make the filing required by this subsection, the posting of the legal notice or process at the entrance, main office, or other prominent location in the common area of the condominium shall constitute notice to the board or other administrative body until such filing is made.
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.
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.
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.
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.
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.
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.
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.
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.
Sections 76-825 to 76-894 shall be known and may be cited as the Nebraska Condominium Act.
(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.
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.
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.
(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.
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.
(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.
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.
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.
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.
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.
(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.
Every contract governed by sections 76-825 to 76-894 imposes an obligation of good faith in its performance.
(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.
(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.
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.
(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.
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.
(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 subdivision (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;
(10) for a condominium project with more than fifteen units, exclusive of common area, a plan prepared by a licensed engineer or architect for the preventive maintenance of the condominium and all common elements therein, including, but not limited to, depreciation studies and reserve analyses, an annually updated five-year capital plan, and minimum financial reserves based on the reserve analyses; and
(11) 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.
(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.
(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.
(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 the Nebraska Condominium Act, 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.
(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.
(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 professional land surveyor, an architect, or a professional engineer.
(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.
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.
(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.
(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.
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.
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.
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.
(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 up to eighty percent of the votes in the association exclusive of the declarant. 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. In addition, no amendment may change the boundaries of any unit, increase the allocated interests of any unit, or change the uses to which any unit is restricted, without the consent of the owner of the unit.
(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.
(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.
(a) 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 such a requirement shall be enforceable only as to matters involving the subdivision of any unit and the creation of any timeshare or as to proposed amendments to the declaration that adversely affect the priority of the mortgagee's or beneficiary's lien or the mortgagee's or beneficiary's rights to foreclose its lien by judicial or nonjudicial means, or that otherwise materially affect the rights and interests of the mortgagee or beneficiary and 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.
(b) In securing approval from a mortgagee or beneficiary of a deed of trust for a proposed amendment to a declaration, the association shall be entitled to rely upon public records to identify the holders of outstanding mortgages or beneficiaries of deeds of trust. The association may use the address provided in the original recorded mortgage or deed of trust document, unless there is a different address for the holder of the mortgage or beneficiary of the deed of trust in a recorded assignment or modification of the mortgage or deed of trust, which recorded assignment or modification shall reference the official records book and page on which the original mortgage or deed of trust was recorded. Once the association has identified the recorded mortgages or deeds of trust of record, the association shall, in writing, request of each unit owner whose unit is encumbered by a mortgage or deed of trust of record any information the owner has in the owner's possession regarding the name and address of the person to whom mortgage or deed of trust payments are currently being made. Notice shall be sent to such person if the address provided in the original recorded mortgage or deed of trust document is different from the name and address of the mortgagee or assignee of the mortgage or beneficiary or assignee of the deed of trust as shown by the public record. The association shall be deemed to have complied with this requirement by making the written request of the unit owners required under this subsection. Any notices required to be sent to the mortgagees, beneficiaries, or assignees under this subsection shall be sent to all available addresses provided to the association.
(c) If any mortgagee or beneficiary of a deed of trust encumbering a unit has been requested by certified mail, return receipt requested, to approve a proposed amendment to a declaration, and such mortgagee or beneficiary fails to approve or object to such request in writing delivered to the requestor by certified mail within sixty days after the date such request has been received by the mortgagee or beneficiary, such failure to respond shall be deemed approval to the amendment.
(d) Any amendment adopted without the required approval of a mortgagee or beneficiary of the deed of trust shall be voidable only by a mortgagee or beneficiary who was entitled to notice and an opportunity to approve. An action to void an amendment shall be subject to the statute of limitations beginning five years after the adoption of an amendment to a declaration. This subsection shall apply to all mortgages, regardless of the date of recordation of the mortgage or deed of trust.
(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 the Nebraska Condominium Act applicable to unit owners associations apply to any such corporation or unincorporated association, except as modified by this section. However, in no case shall the declaration provide that the power to institute or intervene as a plaintiff in litigation or administrative proceedings, other than litigation or administrative proceedings to enforce covenants, bylaws, or rules against unit owners or the unit owners association, be delegated to or exercised by any party other than the unit owners or the declarant.
(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 the act.
(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.
(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.
A unit owners association must be organized no later than the date the units in the condominium equal to one-half of the total number of units plus one are 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.
(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 or intervene as a plaintiff in litigation or administrative proceedings, other than litigation or administrative proceedings to enforce covenants, bylaws, or rules against unit owners or the unit owners association, in its own name on behalf of itself or two or more unit owners on matters affecting the condominium upon the affirmative vote of at least eighty percent of the votes in the association exclusive of the declarant;
(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 encumbered, 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.
(a) Except as provided in the declaration, the bylaws, subsection (b) of this section, or other provisions of the Nebraska Condominium Act, 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 commence litigation on behalf of the unit owners or the unit owners 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 fifty 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.
(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.
(h) The association shall file with the register of deeds of the county in which the condominium is located a condominium statement listing the name of the association and the names and addresses of the current officers of the association. Such filing shall be made every year on or before December 31. The receipt of any legal notice by or service of process on such officer personally or at such officer's filed address shall constitute notice to the association. If the association fails to make the filing required by this subsection, the posting of the legal notice or process at the entrance, main office, or other prominent location in the common area of the condominium shall constitute notice to the association until such filing is made.
(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.
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.
(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.
(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.
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.
(a) Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast thirty-five 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.
(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.
(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 only for costs the association would not have incurred but for a breach of contract or other negligent act or omission by the declarant. 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.
(a) Portions of the common elements may be encumbered or conveyed or otherwise subjected to a security interest by the association if persons entitled to cast at least sixty-seven percent of the votes in the association, including sixty-seven 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 to encumber or 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 encumber or 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 encumber or 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 an 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 an encumbrance of common elements pursuant to this section does not affect the priority or validity of preexisting encumbrances.
(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.
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.
(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.
(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.
(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.
(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.
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.
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.
(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.
(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.
(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.
(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.
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.
(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.
(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;
(6) a statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof; and
(7) a disclosure of any threatened or pending litigation involving the unit or the association.
(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.
(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.
(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.
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.
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.
(a) A judicial proceeding for breach of any obligation arising under section 76-887 or 76-888 must be commenced within two years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than one year. 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. Prior to commencing any judicial proceeding under this section, the person seeking to commence the judicial proceeding must (1) provide written notice of the proposed proceeding and the specific alleged defect or defects to the prospective defendant or defendants and (2) give the prospective defendant or defendants at least three months to cure the alleged defect or defects. If the defect or defects are such that they cannot reasonably be cured within three months, the cure period shall extend as long as the prospective defendant has commenced and is diligently proceeding with repairs. Providing the notice in this section in a manner reasonably understood to inform the prospective defendant of the specific alleged defect or defects shall toll any applicable statute of limitations until the alleged defect or defects are cured. Any proceeding commenced without strict compliance with this section is subject to dismissal for such noncompliance.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
(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.
(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 ........................
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.
(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.
(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 (a) the premises, (b) the courthouse of the county in which the property to be sold, or some part thereof, is situated, or (c) a public building wherein one or more county offices are located within 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) .......................................
(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.
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.
(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.
(1) The trustee shall apply the proceeds of the trustee's sale in the following order of priority:
(a) First, the proceeds shall be applied 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;
(b) Second, the proceeds shall be applied to payment of the obligation secured by the trust deed;
(c) Third, the proceeds shall be applied to the payment of junior trust deeds, mortgages, or other lienholders; and
(d) Fourth, the balance of the proceeds, if any, shall be applied to the person or persons legally entitled to any remaining proceeds.
(2) Whether the proceeds are disbursed by the trustee pursuant to subsection (1) of this section or pursuant to an action described in section 76-1011.01, the payment of any attorney's fees and costs incurred by the trustee in connection with the distribution of the proceeds of the trustee's sale shall be deducted from the proceeds prior to the payment of junior trust deeds, mortgages, or other lien holders, or to any other person or persons legally entitled thereto.
If a court enters a judgment in favor of the holder of a trust deed, mortgage, or other lien in any interpleader action, action for declaratory judgment, or any other similar action resulting from an objection to or the uncertainty of the proposed payment of proceeds of the trustee's sale by the trustee to such holders of trust deeds, mortgages, or other liens, the court shall order the objecting party or parties who, without a good-faith reason, objected to the proposed payment of proceeds of the trustee's sale by the trustee, to pay the reasonable attorney's fees and court costs of any such holder.
(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.
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.
Section 76-2803 shall govern the beneficiary's obligation to record or cause to be recorded a deed of reconveyance and the liability of the beneficiary for failure to timely record or cause to be recorded a deed of reconveyance.
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.
The transfer of any debt secured by a trust deed shall operate as a transfer of the security therefor.
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.
Sections 76-1001 to 76-1018 shall be known and may be cited as Nebraska Trust Deeds Act.
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.
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.
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.
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.
Sections 76-1214 to 76-1242 shall be known and may be cited as the Relocation Assistance Act.
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.
For purposes of the Relocation Assistance Act, the definitions found in sections 76-1217 to 76-1227 shall apply.
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.
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.
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.
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.
(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.
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.
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.
Lead agency shall mean the Nebraska Department of Transportation.
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.
Person shall mean any individual, partnership, limited liability company, corporation, or association.
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.
(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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
(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.
(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.
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.
(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.
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.
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.
(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.
(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.
An order of the agency which has become final may be appealed in accordance with the Administrative Procedure Act.
(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.
Sections 76-1401 to 76-1449 shall be known and may be cited as the Uniform Residential Landlord and Tenant Act.
(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.
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.
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.
(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.
A claim or right arising under the Uniform Residential Landlord and Tenant Act or on a rental agreement may be settled by agreement.
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.
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.
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.
Subject to additional definitions contained in the Uniform Residential Landlord and Tenant Act and unless the context otherwise requires:
(1) Act of domestic violence means abuse as defined in section 42-903, sexual assault under sections 28-319 to 28-320.01, domestic assault under section 28-323, stalking under section 28-311.03, labor or sex trafficking under section 28-831, and knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult under section 28-386.
(2) Action includes recoupment, counterclaim, setoff, suit in equity, and any other proceeding in which rights are determined, including an action for possession.
(3) 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.
(4) 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.
(5) Good faith means honesty in fact in the conduct of the transaction concerned.
(6) Household member means a child or adult, other than the perpetrator of an act of domestic violence, who resides with a tenant.
(7) 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.
(8) 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.
(9) 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.
(10) Person includes an individual, limited liability company, or organization.
(11) Qualified third party means an organization that (a) is a nonprofit organization organized under section 501(c)(3) of the Internal Revenue Code or a federally recognized Indian tribe whose governmental body is within the borders of Nebraska and (b) has an affiliation agreement with the Department of Health and Human Services to provide services to victims of domestic violence and sexual assault under the Protection from Domestic Abuse Act.
(12) 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.
(13) Rent means all payments to be made to the landlord under the rental agreement.
(14) 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.
(15) 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.
(16) 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.
(17) Tenant means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.
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.
(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.
(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.
(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.
(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.
(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 the date of termination of the tenancy. If no mailing address or instructions are provided by the tenant to the landlord, the landlord shall mail, by first-class mail, the balance of the security deposit to be returned, if any, and a written itemization of the amount of the security deposit not returned to the tenant's last-known mailing address. If the mailing is returned as undeliverable, or if the returned balance of the security deposit remains outstanding for one year, it shall be considered abandoned property to be reported and paid to the State Treasurer in accordance with the Uniform Disposition of Unclaimed Property Act.
(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, court costs, and reasonable attorney's fees. In addition, if the landlord's failure to comply with subsection (2) of this section is willful and not in good faith, the tenant may recover an amount equal to one month's periodic rent or two times the amount of the security deposit, whichever is less, as liquidated damages.
(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. However, a tenant shall not be liable for damages directly related to the tenant's removal from the premises by order of any governmental entity as a result of the premises not being fit for habitation due to the negligence or neglect of the landlord.
(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.
(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.
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.
(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.
(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.
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.
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.
(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:
(a) Give the tenant at least twenty-four hours' written notice of the landlord's intent to enter. Such notice shall be provided to each individual unit and include the intended purpose for entry and a reasonable period during which the landlord anticipates making entry; and
(b) Enter only at reasonable times.
(4) The landlord has no other right of access except by court order, as permitted by subsection (2) of section 76-1432, or if the tenant has abandoned or surrendered the premises.
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.
(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.
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.
(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.
(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.
(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.
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.
(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 seven calendar 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, and except as provided in subsection (5) of this section, 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)(a) A landlord shall not take action under subsection (4) of this section 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 or a household member and the tenant or household member takes at least one of the following measures:
(i) The tenant or household member seeks a protective order, restraining order, or other similar relief which would apply to the person conducting such activity;
(ii) The tenant or household member reports such activity to a law enforcement agency in an effort to initiate a criminal action against the person conducting the activity; or
(iii) If the activity is an act of domestic violence, the tenant or household member receives certification of the activity from a qualified third party as set forth in the housing protection provisions of the federal Violence Against Women Reauthorization Act of 2013.
(b) This subsection shall not apply to a tenant who is a perpetrator of an act of domestic violence. If both the victim who takes measures under this subsection and perpetrator of an act of domestic violence are parties to a rental agreement, a landlord shall only take action under subsection (4) of this section against the perpetrator.
(1) A tenant who is a victim of an act of domestic violence or whose household member is a victim of an act of domestic violence may obtain a release from a rental agreement if the tenant or household member has:
(a) Obtained a protective order, restraining order, or other similar relief which applies to the perpetrator of the act of domestic violence; or
(b) Obtained certification confirming domestic violence as set forth in subdivision (5)(a)(iii) of section 76-1431.
(2) To obtain a release from a rental agreement under this section, the tenant shall:
(a) Provide to the landlord a copy of the documentation described in subsection (1) of this section; and
(b) Provide to the landlord a written notice containing:
(i) The date on which the tenant wishes the release to be effective. Such date shall be at least fourteen days after the date the tenant provides the documentation and written notice and no more than thirty days after such date; and
(ii) The names of any household members to be released in addition to the tenant.
(3) The tenant shall remain liable for rent for the month in which the tenant terminated the rental agreement.
(4) A tenant and any household member who is released from a rental agreement pursuant to this section:
(a) Are not liable for rent or damages to the premises incurred after the release date; and
(b) Are not subject to any fee solely because of termination of the rental agreement.
(5) Other tenants who are parties to the rental agreement, other than household members of a tenant released under this section, are not released pursuant to this section from their obligations under the rental agreement or the Uniform Residential Landlord and Tenant Act.
(6) A tenant who is a perpetrator of an act of domestic violence may not obtain a release from a rental agreement under this section.
(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.
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.
(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.
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.
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.
(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.
(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.
(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.
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.
(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 specific statutory authority under which possession is sought; (b) the facts, with particularity, on which he or she seeks to recover; (c) a reasonably accurate description of the premises; and (d) 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.
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.
When authorized by section 76-1442, service of a summons issued under such section may be made by posting a copy on the front door of the dwelling unit and mailing a copy by first-class mail to the defendant's last-known address. The plaintiff shall file an affidavit with the court describing the diligent efforts 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 on the front door of the dwelling unit and mailing a copy by first-class mail to the defendant's last-known address.
The court may grant a continuance for good cause shown by either party, but no subsequent continuance shall be granted except by agreement or unless extraordinary cause be shown to the court. For any subsequent continuance extending the initial trial date into the next periodic rental period, the court may require a tenant to deposit with the clerk of the court such rental payments as accrue during the pendency of the suit.
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.
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.
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.
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.
The Uniform Residential Landlord and Tenant Act applies to rental agreements entered into or extended or renewed after July 1, 1975.
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.
Sections 76-1450 to 76-14,111 shall be known and may be cited as the Mobile Home Landlord and Tenant Act.
(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.
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.
(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.
A claim or right arising under the Mobile Home Landlord and Tenant Act or under a rental agreement may be settled by agreement.
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.
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.
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.
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.
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.
Good faith shall mean honesty in fact in the conduct of the transaction concerned.
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.
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.
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.
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.
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.
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.
Rent shall mean a payment to be made to a landlord pursuant to a rental agreement.
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.
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.
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.
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.
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.
(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.
(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.
(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.
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.
(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.
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.
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.
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.
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.
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.
A landlord shall not demand or receive as rental deposit an amount or value in excess of one month's periodic rent.
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.
(1) A landlord shall, within fourteen days from the date of termination of the tenancy, 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. If no mailing address or delivery instructions are provided by the tenant to the landlord, the landlord shall mail, by first-class mail, the balance of the rental deposit to be returned, if any, and the written statement regarding any amounts withheld to the tenant's last-known mailing address. If the mailing is returned as undeliverable, or if the returned balance of the rental deposit remains outstanding for one year, it shall be considered abandoned property to be reported to the State Treasurer in accordance with the Uniform Disposition of Unclaimed Property Act. 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.
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.
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.
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.
If a landlord retains all or any portion of a rental deposit in violation of sections 76-1483 to 76-1488, the tenant may recover the amount of the rental deposit due to the tenant, court costs, and reasonable attorney's fees. In addition, if the landlord's retention of the rental deposit or any portion thereof is willful and not in good faith, the tenant may recover an amount equal to one month's periodic rent or two times the amount of the rental deposit, whichever is less, as liquidated damages.
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.
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.
(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.
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.
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.
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.
(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.
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.
(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.
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.
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.
(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 seven 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 by bringing an action for possession in the manner described in sections 76-1440 to 76-1447.
(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.
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.
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.
(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.
(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.
(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.
(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.
(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.
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.
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.
The Mobile Home Landlord and Tenant Act shall apply to rental agreements entered into, extended, or renewed after January 1, 1985.
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.
Agricultural land shall mean land suitable for use in farming.
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.
Fiduciary capacity shall mean an undertaking to act as executor, administrator, personal representative, guardian, conservator, or receiver.
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.
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.
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.
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.
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.
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.
(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.
(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.
(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.
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.
Sections 76-1601 to 76-1609 shall be known and may be cited as the Self-Service Storage Facilities Act.
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 website 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.
(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.
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.
(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.
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.
(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.
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.
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.
Sections 76-1701 to 76-1741 shall be known and may be cited as the Nebraska Time-Share Act.
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.
(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.
Each time-share estate constitutes for purposes of title a separate estate or interest in property except for real property tax purposes.
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.
A time-share program may be created in any unit unless expressly prohibited by the project instruments.
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.
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.
(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.
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.
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.
No action for partition of a unit may be maintained except as permitted by the time-share instrument.
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.
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.
(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.
(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.
(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.
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.
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.
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.
(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.
(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 person or class of persons reasonable attorney's fees.
(2)(a) Any developer or any other person subject to the act who offers or disposes of a time-share interval without having complied with the act or who violates any provision of the act shall be guilty of a Class I misdemeanor.
(b) Any person acting as a sales agent without having first obtained a real estate broker or salesperson license shall be guilty of a Class II misdemeanor.
(3) Whenever, in the judgment of the commission, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of the act, the Attorney General may maintain an action in the name of the State of Nebraska, in the district court of the county wherein such violation or threatened violation occurred, to abate and temporarily and permanently enjoin such acts and practices and to enforce compliance with the provisions of the act. The plaintiff shall not be required to give any bond nor shall any court costs be adjudged against the plaintiff.
(4) The commission by and through its director may prefer a complaint for violation of the act.
A judicial proceeding in which the accuracy of the public-offering statement or validity of any contract of purchase is in issue or in which a rescission of the contract or damages is sought shall be commenced within four years after the date of the contract of purchase, notwithstanding that the purchaser's terms of payments may extend beyond the period of limitation except that, with respect to the enforcement of provisions in the contract of purchase which require the continued furnishing of services and the reciprocal payments to be made by the purchaser, the period for bringing a judicial proceeding will continue for a period of four years for each breach, but the parties may agree in writing to reduce the period of limitation to not less than two years.
The person or entity responsible for making or collecting common expense assessments or maintenance assessments shall keep detailed financial records. All financial and other records shall be made reasonably available for examination by any time-share interval owner and his or her authorized agents.
(1) The commission may adopt, amend, and repeal rules and regulations and issue orders consistent with, and in furtherance of the objectives of the Nebraska Time-Share Act. The commission may prescribe forms and procedures for submitting information to the commission.
(2) The commission may accept grants-in-aid from any governmental source and may contract with agencies charged with similar functions in other jurisdictions in furtherance of the objectives of the act.
(3) The commission may cooperate with agencies performing similar functions in this and other jurisdictions to develop uniform filing procedures and forms, uniform disclosure standards, and uniform administrative practices, and may develop information that may be useful in the discharge of the commission's duties.
(4) The commission may initiate private investigations within or outside this state.
(1) The commission, after notice and hearing, may issue a notice of suspension if any of the following conditions exist:
(a) Any representation in any document or information filed with the commission is false or misleading;
(b) Any developer or agent of the developer has engaged or is engaging in any unlawful act or practice;
(c) Any developer or agent of the developer has disseminated or caused to be disseminated orally or in writing any false or misleading promotional materials in connection with a time-share program;
(d) Any developer or agent of the developer has concealed, diverted, or disposed of any funds or assets of any person in a manner impairing rights of purchasers of time-share intervals in the time-share program;
(e) Any developer or agent of the developer has failed to perform any stipulation or agreement made to induce the commission to issue an order relating to the time-share program; or
(f) Any developer or agent of the developer has otherwise violated any provision of the Nebraska Time-Share Act or the commission's rules and regulations or orders.
(2) The commission may issue a cease and desist order if the developer has not registered the time-share program as required by the act.
(3) The commission, after notice and hearing, may issue an order revoking the registration of a time-share program upon determination that a developer or agent of the developer has failed to comply with a notice of suspension issued by the commission affecting the time-share program.
A developer shall not offer or dispose of a time-share interval:
(1) If the time-share program is not registered with the commission and not otherwise exempted under section 76-1738, except that a developer may accept a reservation together with a deposit if the deposit is placed in an escrow account with an institution having trust powers and is refundable at any time at the purchaser's option. In all cases, a reservation shall require a subsequent affirmative act by the purchaser by a separate instrument to create a binding obligation;
(2) While an order revoking or suspending the registration of the time-share program is in effect; or
(3) If the developer has not designated a duly licensed Nebraska real estate broker who accepts responsibility for the developer's actions in this state.
An acquisition agent, including the developer if it is also the acquisition agent, shall register with the commission the time-share program or programs that it is providing prospective purchasers for, its principal office address and telephone number, and designate who its responsible managing employee is. The acquisition agent shall furnish evidence that a bond of five thousand dollars has been placed with a surety company or a cash bond with the commission to cover any violations of any solicitation ordinances, zoning ordinances, building codes, or other regulations governing the use of the premise or premises in which the time-share program is promoted.
A sales agent, including the developer if it is also the sales agent, shall register with the commission the time-share program or programs that it is selling, its principal office address and telephone number, and designate who its responsible managing employee is and any special escrow accounts set up for the deposit and collection of purchasers' funds. The sales agent shall furnish evidence that a bond of five thousand dollars has been placed with a surety company or a cash bond with the commission to cover any defalcations of the sales agent.
A managing agent, including the developer if it is also the managing agent, shall register with the commission the time-share program or programs that it is managing, its principal office address and telephone number, and designate who its responsible managing employee is. The managing agent shall furnish evidence that a bond of five thousand dollars has been placed with a surety company or a cash bond with the commission to cover any default of the managing agent of his or her duties and responsibilities.
If the acquisition agent, sales agent, and management agent are under the control of, subsidiary of, or affiliate of the developer or any other person, the bonds required by sections 76-1728 to 76-1730 may be consolidated and reduced to ten thousand dollars if there is a disclosure of the affiliation and the disclosures required by sections 76-1728 to 76-1730.
An exchange agent, including the developer who is also the exchange agent, shall file a statement with the commission containing a list of time-share programs for which it is offering exchange services, its principal office address and telephone number, a designation of its responsible managing employee or person with whom any contact is to be made, and the information required in subdivisions (1) through (7) of section 76-1714. Such statement may omit any information which the exchange agent certifies in writing to the developer and which the developer includes in the public-offering statement.
The acquisition agent and sales agent shall each maintain their respective records of any independent contractors employed by them, their addresses, and commissions paid for the immediately preceding two calendar years.
(1) An application for registration shall contain the public-offering statement, a brief description of the property, copies of time-share instruments, a certified, audited financial statement fully and fairly disclosing the current financial condition of the developer, and any documents referred to therein and such other information as may be required by the commission. In lieu of a certified, audited financial statement of the developer, the commission may accept a current audited consolidated financial statement which includes the financial condition of the developer and is accompanied by a statement from the developer's parent organization, in a form approved by the commission, that guarantees the developer's performance on any obligation under the Nebraska Time-Share Act or as contracted by the developer.
(2) Such application shall be accompanied by a filing fee of two hundred dollars plus five dollars for each twenty-five time-share intervals or portions thereof. If the application is approved, the commission shall issue a certificate of registration to the applicant. After issuance of a certificate, an annual fee of fifty dollars plus five dollars for each twenty-five time-share intervals or fraction thereof computed on the number of time-share intervals in the original application shall be due and payable on or before January 1 of each year. The annual fee for each time-share program shall not exceed one thousand five hundred dollars. Failure to remit annual fees when due shall automatically cancel the certificate, but otherwise such certificate shall remain in full force and effect if the commission determines from satisfactory investigation that such certificate should be renewed.
(3) Before issuing the renewal certificate each year, the certificate holder shall furnish to the commission, on or before January 1 of each year, an annual report of all purchases and reservations made by the developer or its agents to any person with a residence, primary place of business, or mailing address in this state and any other information requested by the commission. The annual report shall (a) include the amount of any deposit required to be made in connection with the purchase or reservation of a time-share interval from the developer and (b) cover the twelve-month period ending October 31 immediately preceding the annual report.
(4) The commission 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 commission in investigating such real estate and the proposed sale thereof in this state shall be borne by the applicant and the commission shall require a deposit sufficient to cover such expenses prior to incurring such expenses.
(1) The commission at any time may require a developer to alter or supplement the form or substance of a public-offering statement to assure adequate and accurate disclosure to prospective purchasers.
(2) The public-offering statement may not be used for any promotional purposes before registration and afterwards only if it is used in its entirety. No person shall advertise or represent that the commission has approved or recommended the time-share program, the disclosure statement, or any of the documents contained in the application for registration.
(3) No developer or sales agent shall in any manner refer to the commission or any member or employee thereof in selling, offering for sale, or advertising or otherwise promoting the sale of time-share intervals, nor make any representation whatsoever that such development has been inspected or approved or otherwise passed upon by the commission or any other state official, department, or employee.
(1) Except as provided in subsection (2) of this section, the effective date of the registration, or any amendment thereto, shall be the sixtieth day after the filing thereof or such earlier date as the commission may determine, having due regard to the public interest and the protection of purchasers. If any amendment to any such registration is filed prior to the effective date, the registration shall be deemed to have been filed when such amendment was filed.
(2) If it appears to the commission that the application for registration, or any amendment thereto, is on its face incomplete or inaccurate in any material respect, the commission 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 commission shall require. If the developer fails to provide additional information as required by the commission within ninety days after receiving notice, the commission may deny the application or amendment. Any developer, upon receipt of such notice of suspension may request a hearing, and such hearing shall be held within forty-five days after receipt of such request.
(3) If an application or amendment is denied by the commission, the developer shall submit a new application for registration or amendment and any filing fees pursuant to section 76-1734.
A developer shall amend or supplement its registration to report any material change in the information required by section 76-1734.
Notwithstanding any obligations placed upon other persons pursuant to the Nebraska Time-Share Act, the developer shall supervise, manage, and control all aspects of the offering of a time-share interval, including, but not limited to, promotion, advertising, contracting, and closing. Any violation of this section which occurs during such offering shall be a violation by the developer as well as by the person actually committing such violation.
No registration with the commission shall be required 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;
(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; or
(8) Any offering, other than through an individual while located in this state, of a time-share interval for a time-share project situated wholly outside this state if the offer states that the time-share interval is in compliance with the law of the jurisdiction in which the time-share interval is located.
A reservation pursuant to section 76-1727 may be taken as a result of an exempt offering if the time-share program is registered prior to entering into any binding agreement with a purchaser, unless otherwise provided by the Nebraska Time-Share Act. For the purposes of subdivision (5) of this section and the act, an exempt offer is an offering.
In the financing of a time-share program, the developer shall retain financial records of the schedule of payments required to be made and the payments made to any person or entity which is the holder of an underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance. Any transfer of the developer's interest in the time-share program to any third person shall be subject to the obligations of the developer.
The developer whose project is subject to an underlying blanket lien or encumbrance shall protect nondefaulting purchasers from foreclosure by the lienholder by obtaining from the lienholder a nondisturbance clause, subordination agreement, or partial release of the lien as the time-share intervals are sold. In the alternative, the developer may obtain the agreement of the lienholder to take the project, in the event of default by the developer, subject to the rights of the nondefaulting purchasers by (1) posting a bond, equal to fifty percent of the amount owed to the lienholder, (2) making an assignment of receivables equal to one hundred twenty-five percent of the principal amounts due from purchasers, (3) pledging collateral security equal to one hundred percent of the amount owed to the lienholder, or (4) entering into any other financing plan or escrow agreement acceptable to the lienholder.
The lienholder in any time-share program shall have the following rights:
(1) A lienholder shall have his or her lien rights preserved as against any purchaser of time-share intervals claiming that the time-share instrument is invalid, void, or voidable thirty days after written notice by certified mail or personal delivery has been given by the developer to the purchaser. Such notice shall state that developer has assigned the receivables to the lienholder and that purchaser has thirty days within which to object and specify the invalidity or defect contained within such instrument; and
(2) Any purchaser who fails to indicate the invalidity, void, or voidableness as provided in subdivision (1) of this section waives or is estopped to raise the issue in any subsequent action for enforcement of the collection of the receivable by the lienholder.
Sections 76-1901 to 76-1916 shall be known and may be cited as the Farm Homestead Protection Act.
As used in the Farm Homestead Protection Act, unless the context otherwise requires:
(1) Designation of homestead shall mean a sworn written statement by an individual mortgagor, trustor, or judgment debtor which describes his or her homestead, executed on or after November 21, 1986. Such statement shall include a legal description of the homestead. If only a portion of the homestead will be encumbered by the mortgage, trust deed, or judgment lien with respect to which a designation is made, then such portion so encumbered shall also be identified by proper legal description. If the homestead or the encumbered portion of the homestead is not separately described in its entirety in the mortgage or trust deed with respect to which a designation is made, or cannot be accurately described as a fractional part of a section, the designation shall be accompanied by a survey which includes a metes and bounds description with reference to established datum. The survey and description shall be prepared by and bear the signature and seal of a professional land surveyor. The designation shall include statements by the individual mortgagor, trustor, or judgment debtor that (a) he or she resides in a dwelling house located upon the homestead, (b) all appurtenances to such dwelling and an adequate supply of potable water and an adequate system of sewage disposal exist upon the homestead, (c) both the water supply and sewage disposal system are located entirely upon the homestead and neither will require access to or an easement across any part of the nondesignated agricultural land encumbered by such mortgage or trust deed, (d) both the homestead and the nonhomestead real estate encumbered by such mortgage or trust deed have existing legal access to a public roadway, and (e) provide a complete listing of all structures and other improvements situated on the portion of the homestead so encumbered, together with a representation that such structures and improvements are within the homestead boundary and do not encroach upon any of the nonhomestead real estate encumbered by such mortgage or trust deed;
(2) Agricultural land shall mean a parcel of land larger than twenty acres not located in any incorporated city or village which is owned by an individual and used in farming operations carried on by the owner at any time within the preceding three-year period for the production of farm products as defined in section 9-102, Uniform Commercial Code. Agricultural land shall include wasteland lying within or contiguous to and in common individual ownership with land used in farming operations for the production of farm products;
(3) Homestead shall mean a parcel of agricultural land encumbered in whole or in part by the lien of a mortgage, trust deed, or judgment, for which a designation of homestead has been made pursuant to the Farm Homestead Protection Act, and which possesses all of the attributes legally requisite to its selection by the mortgagor, trustor, or judgment debtor as his or her homestead under Chapter 40, except that the value limitation of section 40-101 shall not be construed to limit or impede any such designation;
(4) Protected real estate shall mean agricultural land which is encumbered by the lien of a judgment entered or a mortgage or trust deed executed on or after November 21, 1986, which lien is of a first and paramount priority over any other lien except a tax lien; and
(5) Redemptive homestead shall mean that portion of any protected real estate for which an owner has made a designation of homestead as provided in the Farm Homestead Protection Act.
(1) In any action for the foreclosure of a mortgage upon protected real estate, if the mortgaged premises are used in farming operations carried on by the mortgagor, the mortgagee shall, before the commencement of such action, send to the mortgagor written notice of right to cure.
(2) The notice of right to cure shall set forth:
(a) A statement identifying the mortgage instrument by stating the name of the mortgagor named therein and giving the book and page or computer system reference where the same is recorded, a brief description of the mortgaged premises, and a statement that a breach of an obligation contained in or secured by the mortgage has occurred, setting forth the nature of such breach and of the mortgagee's election to enforce the mortgage against the mortgaged premises;
(b) A statement that the mortgagor, his or her successor in interest in the mortgaged premises or any part thereof, or any other person having a subordinate lien or encumbrance of record thereon may, at any time within two months of the sending of the notice of right to cure, render to the mortgagee or his or her successor in interest full performance and payment of the entire amount then due under the terms of the mortgage and the obligation secured thereby, including costs and expenses actually incurred in enforcing the terms of such obligation and mortgage, including reasonable attorney's fees not exceeding one-half of one percent of the unpaid principal balance then due, and any reinstatement fee provided for under the terms of the mortgage or the obligation thereby secured, other than such portion of the principal as would not then be due had no default occurred, and thereby cure the default previously existing;
(c) A statement of the amount of the entire unpaid principal sum secured by the mortgage, the amount of interest accrued thereon to and including the date of notice, and the dollar amount of the per diem interest accruing from and after such date; and
(d) A statement of the amount of the unpaid principal which would not then be due had no default occurred.
(3) A copy of the notice of right to cure sent to the mortgagor shall be appended as an exhibit to the foreclosure petition filed with the court. The right to cure provided by this section shall expire two months from the date the notice of right to cure is sent to the mortgagor.
(4) If the default is cured prior to the expiration of the two-month period, any action previously commenced shall be dismissed and the mortgage and the obligation thereby secured shall be reinstated and shall be and remain in force and effect the same as if no default or acceleration had occurred.
(1) In any mortgage or trust deed executed on or after November 21, 1986, upon agricultural land, the mortgagor or trustor may make a designation of homestead in the body of such mortgage or trust deed.
(2) In any mortgage or trust deed executed on or after November 21, 1986, upon agricultural land, if no (a) designation of homestead is made pursuant to subsection (1) of this section or (b) waiver or disclaimer given in accordance with subsection (3) of this section, such mortgage or trust deed shall be construed as affording to the mortgagor or trustor a reservation of right to defer his or her designation of homestead until such time as a decree of foreclosure is entered upon such mortgage or trust deed or a trustee's notice of default is filed for record pursuant to section 76-1006.
(3)(a) On or after November 21, 1986, prior to the execution of any mortgage or trust deed upon agricultural land, the mortgagor or trustor may disclaim in writing his or her right to make a designation of homestead. The disclaimer shall contain a statement by the mortgagor or trustor that no part of his or her homestead is presently or in the future will be situated upon the real estate described in the mortgage or trust deed and that the mortgagor or trustor understands that if he or she establishes a homestead on any part of the real estate during the time the mortgage or trust deed remains unsatisfied and a lien upon the real estate, there shall be no right to make a designation of homestead in the event of a foreclosure or trustee's sale upon such mortgage or trust deed. Such written disclaimer shall be set forth as a preface to the mortgage or trust deed and shall be filed for record as a part of the mortgage or trust deed in the office of the register of deeds. Failure by the mortgagee or trustee to file a written disclaimer as provided in this subdivision shall nullify any purported disclaimer by the mortgagor or trustor of his or her right to make a designation of homestead.
(b) On and after November 21, 1986, prior to the execution of any mortgage or trust deed upon agricultural land, the mortgagor or trustor may waive by written acknowledgment his or her right to make a designation of homestead. The written acknowledgment shall contain a statement that the mortgagor or trustor understands that he or she has the right to make a designation of homestead in the mortgage or trust deed and the execution of such acknowledgment constitutes the waiver of rights otherwise available for the purpose of affording the mortgagor or trustor the opportunity to retain his or her homestead in the event of a default upon such mortgage or trust deed. Such written acknowledgment shall be set forth as a preface to the mortgage or trust deed and shall be filed for record as a part of the mortgage or trust deed in the office of the register of deeds. Failure by the mortgagee or trustee to file a written acknowledgment as provided in this subdivision shall nullify any purported waiver by the mortgagor or trustor of his or her right to make a designation of homestead.
For so long as any mortgage or trust deed described in section 76-1904 remains a lien upon the real estate, the designation of homestead, the reservation of the right to make a designation of homestead, or a waiver or disclaimer of the right to make a designation of homestead made in accordance with section 76-1904 shall be binding upon the parties to such instrument and their successors in interest and upon any other interest in the real estate which is junior in priority to the priority of the lien created by such mortgage or trust deed. Except as provided in sections 76-1912 and 76-1913, no designation of homestead shall have any force or effect if any mortgage or trust deed executed or a judgment rendered prior to November 21, 1986, remains a lien upon the real estate and is senior in priority to the instrument in which a designation of homestead, reservation of the right to make a designation of homestead, or a waiver or disclaimer of the right to make a designation of homestead is made.
(1) In an action against protected real estate for the foreclosure of any mortgage or trust deed described in section 76-1904 with respect to which no waiver or disclaimer of the right to make a designation of homestead has been made or is otherwise binding in accordance with section 76-1905, if any part of the homestead of the mortgagor or trustor is included in a decree directing a sale of the mortgaged premises or trust property, the mortgagor or trustor may request redemption of his or her redemptive homestead. Such request shall be made in a petition signed and sworn to by the mortgagor or trustor and filed in the foreclosure action not later than twenty days after entry of the decree of foreclosure.
(2) In any proceeding against protected real estate involving the exercise of a power of sale by a trustee under a trust deed described in section 76-1904 with respect to which no waiver or disclaimer of the right to make a designation of homestead has been made or is otherwise binding in accordance with section 76-1905, if any part of the homestead of the trustor is included in the notice of default filed in accordance with section 76-1006, the trustor may request redemption of his or her redemptive homestead. Such request shall be made in a petition signed and sworn to by the trustor and filed in the district court of the county where the trust property is located not later than two months following recordation of the notice of default.
(3) If protected real estate of a judgment debtor is subject to the lien of a judgment entered on or after November 21, 1986, and if no waiver or disclaimer of the right to make a designation of homestead is binding in accordance with section 76-1905, the judgment debtor may request redemption of his or her redemptive homestead. Such request shall be made in a petition signed and sworn to by the judgment debtor and filed in the district court of the county where the redemptive homestead is located not later than the date of the last publication of the notice required by section 25-1529.
A petition filed pursuant to section 76-1906 shall:
(1) Set forth a designation of the homestead which shall, with respect to the redemptive homestead, be limited by the boundaries of any designation made pursuant to section 76-1904 in any mortgage or trust deed having priority under section 76-1905; and
(2) Include a written appraisal report prepared and signed by a credentialed real property appraiser setting forth the appraiser's opinion of value and basis for such opinion of the current market value of each of the following: (a) The protected real estate as a whole; (b) the redemptive homestead if sold separately from the balance of the protected real estate; and (c) the balance of the protected real estate if sold separately from the redemptive homestead.
If after trial as an action in equity the court finds: (1) That the petition provided for in section 76-1906 is filed in good faith and not for delay; (2) that the statements contained in the petition are true; and (3) that the requested redemption will not unreasonably affect the market value of the protected real estate exclusive of the redemptive homestead, then the court shall confirm the redemption.
(1) Except as provided in subsection (2) of this section, an order confirming a requested homestead redemption shall direct the petitioner to pay into the court not later than ten days from the entry of such order a cash amount equal to the current market value of the redemptive homestead as found and determined by the court in its confirmation order. If the petitioner fails to make such payment, the court shall, upon its own motion or the motion of any party to the action, vacate the confirmation order, and all of the protected real estate shall then be subject to sale as provided by law, free of any redemptive or other right of the petitioner otherwise existing under the Farm Homestead Protection Act. The filing of a petition requesting redemption on the basis of the payment of a cash amount equal to the current market value of the redemptive homestead shall not constitute a waiver of any stay in effect or available to the petitioner under section 25-1506.
(2) Redemption based upon the petitioner's equity in the protected real estate shall be permitted when requested in the prayer of the petition and when the court specifically finds and determines in its confirmation order that the sum of all liens upon the protected real estate is equal to eighty-five percent or less of the current market value of that portion of the protected real estate exclusive of the redemptive homestead. If the court finds that the petitioner has sufficient equity as required by this subsection, the payment otherwise required by subsection (1) of this section shall be waived by the court in its order confirming the redemption. The filing of a petition requesting redemption on the basis of the petitioner's equity in the protected real estate as provided in this subsection shall constitute a waiver of any stay in effect or available to the petitioner under section 25-1506.
(1) The filing of a petition as provided in section 76-1906 shall not delay or preclude the holder of a mortgage, trust deed, or judgment lien, referred to in such section, from causing a sale as otherwise permitted by law of that portion of the protected real estate exclusive of the redemptive homestead described in the petition.
(2) Upon (a) payment of the market value of the redemptive homestead as provided in subsection (1) of section 76-1909 or (b) confirmation of a requested redemption on the basis of the petitioner's equity in the protected real estate pursuant to subsection (2) of section 76-1909, the petitioner shall be entitled to retain his or her interest in the redemptive homestead free of the lien of the mortgage or trust deed or the judgment lien, against which the petition for redemption was filed, and free of any other lien held therein by any party to the action.
No action on any petition filed in accordance with section 76-1906 nor any order of confirmation entered thereon shall at any time affect or impair any prior lien upon agricultural land under any mortgage or trust deed executed or judgment rendered prior to November 21, 1986, and no redemptive right created by the Farm Homestead Protection Act shall exist with respect to any such mortgage, trust deed, or judgment.
(1) In an action for the foreclosure of a mortgage upon agricultural land which was recorded prior to November 21, 1986, or a mortgage recorded on or after November 21, 1986, in which the right to designate a homestead has been waived or disclaimed pursuant to section 76-1904, if any part of the homestead of the mortgagor is included in a decree directing a sale of the mortgaged premises, upon request of the mortgagor, the mortgaged premises shall be offered in separate sales. The first sale shall be en masse and, immediately thereafter, at the same location, the premises shall again be sold. At the second sale, the mortgaged premises shall be sold in two separate parcels with the homestead designated in the mortgagor's request being the last parcel to be sold. The sheriff or other person authorized by the court to sell the mortgaged premises shall make return of both sales. The court shall confirm, subject to the provisions of section 25-1531, the sale upon which the greater amount is realized, except that if in the second sale by parcels the mortgagor bids for his or her designated homestead, and if, by virtue of the price bid by the mortgagor for such homestead, the aggregate amount realized in the second sale equals or exceeds the amount realized from the first sale en masse or the amount of the decree, whichever is less, then the court shall confirm the sale by parcels and the mortgagor shall be the purchaser of his or her designated homestead.
(2) The mortgagor's request shall be signed and acknowledged by the mortgagor and filed with the clerk of the court within twenty days after entry of the decree of foreclosure.
(3) The mortgagor's request shall include his or her designation of homestead.
(1) If any part of the homestead of the trustor is included in a description of agricultural land set forth in a notice of default under a trust deed recorded prior to November 21, 1986, or a trust deed recorded on or after November 21, 1986, in which the trustor has waived or disclaimed the right to designate a homestead pursuant to section 76-1904, upon request by the trustor, such property shall be offered in two separate sales in the manner set forth in section 76-1009. The first sale shall be en masse and, immediately thereafter, at the same location, the property shall again be sold. In the second sale, the property shall be sold in separate parcels with the homestead designated in the trustor's request being the last parcel to be sold. The property shall be sold to the highest bidder or bidders at the sale producing the greatest aggregate price, except that if at the second sale by parcels the trustor bids for his or her designated homestead, and if, by virtue of the price bid by the trustor for such homestead, the aggregate price realized in the second sale equals or exceeds the price realized from the first sale en masse or the amount sufficient to satisfy the cost and expenses described in section 76-1011 and the obligation secured by the trust deed and all other indebtedness secured by subordinate liens and encumbrances, whichever is less, then the trustor shall be the purchaser of the homestead parcel and entitled to a trustee's deed thereto and the balance of the property shall be sold to the highest bidder therefor at the second sale by parcels.
(2) The trustor's request shall identify the trust deed by giving the book and page or computer system reference where the same is recorded and shall be signed and acknowledged by the trustor and filed for record in the office of the register of deeds of each county where the trust property or some part or parcel thereof is situated within two months of the filing for record of the notice of default.
(3) The trustor's request shall include his or her designation of homestead.
The Farm Homestead Protection Act shall not be construed to impair any right of a judgment debtor to claim and receive the dollar amount of the exemption afforded to the holder of the homestead under section 40-101.
The rights afforded to a mortgagor or trustor under the Farm Homestead Protection Act shall be available for the protection of the homestead of his or her successor in interest in the mortgaged premises or trust property only if the successor has entered into an agreement signed and acknowledged by the mortgagee or beneficiary and by the successor for the assumption and full performance by the successor of the obligations secured by the mortgage or trust deed.
(1) A sale or conveyance of agricultural land in parcels pursuant to any action on a petition filed pursuant to section 76-1906, (2) a foreclosure sale of mortgaged premises in parcels pursuant to section 76-1912 or 76-1913 or a decree entered under section 25-2138, or (3) a conveyance by deed executed by the owner to a mortgagee or trustee in lieu of foreclosure or exercise of the trustee's power of sale shall be exempt from the requirements of subdivision approval contained in sections 14-116, 15-901, 16-902, 17-1002, 23-174.03, and 23-373 and shall not constitute a subdivision as defined in sections 14-116, 15-901, 19-921, 23-174.03, and 23-372.
Sections 76-2001 to 76-2008 shall be known and may be cited as the Uniform Statutory Rule Against Perpetuities Act.
(a) A nonvested property interest is invalid unless:
(1) When the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or
(2) The interest either vests or terminates within ninety years after its creation.
(b) A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
(1) When the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than twenty-one years after the death of an individual then alive; or
(2) The condition precedent either is satisfied or becomes impossible to satisfy within ninety years after its creation.
(c) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
(1) When the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than twenty-one years after the death of an individual then alive; or
(2) The power is irrevocably exercised or otherwise terminates within ninety years after its creation.
(d) In determining whether a nonvested property interest or a power of appointment is valid under subdivision (a)(1), (b)(1), or (c)(1) of this section, the possibility that a child will be born to an individual after the individual's death is disregarded.
(a) Except as provided in subsections (b) and (c) of this section and subsection (a) of section 76-2006, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(b) For purposes of the Uniform Statutory Rule Against Perpetuities Act, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of (i) a nonvested property interest or (ii) a property interest subject to a power of appointment described in subsection (a) or (b) of section 76-2002, the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(c) For purposes of the act, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
Upon the petition of an interested person, a county court in a proceeding described in section 30-2211 or 30-3812 or a district court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the ninety years allowed by subdivision (a)(2), (b)(2), or (c)(2) of section 76-2002 if:
(1) A nonvested property interest or a power of appointment becomes invalid under section 76-2002;
(2) A class gift is not but might become invalid under section 76-2002 and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(3) A nonvested property interest that is not validated by subdivision (a)(1) of section 76-2002 can vest but not within ninety years after its creation.
Section 76-2002 does not apply to:
(1) A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of (i) a premarital or postmarital agreement, (ii) a separation or divorce settlement, (iii) a spouse's election, (iv) a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties, (v) a contract to make or not to revoke a will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction of a duty of support, or (viii) a reciprocal transfer;
(2) A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
(3) A power to appoint a fiduciary;
(4) A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
(5) A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
(6) A nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;
(7) A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another law of this state;
(8) A property interest, ownership, or a power of appointment transferred in trust for charitable purposes by whose terms such trust is to continue for an indefinite or unlimited period or arrangement of like import; or
(9) A trust in which the governing instrument states that the rule against perpetuities does not apply to the trust and under which the trustee or other person to whom the power is properly granted or delegated has power under the governing instrument, any applicable statute, or the common law to sell, lease, or mortgage property for any period of time beyond the period which would otherwise be required for an interest created under the governing instrument to vest. This subdivision shall apply to all trusts created by will or inter vivos agreement executed or amended on or after July 20, 2002, and to all trusts created by exercise of power of appointment granted under instruments executed or amended on or after July 20, 2002.
(a) Except as extended by subsection (b) of this section, the Uniform Statutory Rule Against Perpetuities Act applies to a nonvested property interest or a power of appointment that is created on or after August 25, 1989. For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
(b) If a nonvested property interest or a power of appointment was created before August 25, 1989, and is determined in a judicial proceeding, commenced on or after such date, to violate this state's rule against perpetuities as that rule existed before such date, a county court in a proceeding described in section 30-2211 or 30-3812 or a district court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
The Uniform Statutory Rule Against Perpetuities Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it.
The Uniform Statutory Rule Against Perpetuities Act supersedes the rule of common law known as the rule against perpetuities.
Sections 76-2101 to 76-2121 shall be known and may be cited as the Membership Campground Act.
For purposes of the Membership Campground Act:
(1) Advertisement means an attempt by publication, dissemination, solicitation, or circulation to induce, directly or indirectly, any person to enter into an obligation or acquire a title or interest in a membership camping contract;
(2) Affiliate means any person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the person specified;
(3) Business day means any day except Saturday, Sunday, or a legal holiday;
(4) Campground means real property made available to persons for camping, whether by tent, trailer, camper, cabin, recreational vehicle, or similar device, and includes the outdoor recreational facilities located on the real property. Campground does not include a mobile home park as defined in section 76-1464;
(5) Campsite means a space:
(a) Designed and promoted for the purpose of locating a trailer, tent, tent trailer, recreational vehicle, pickup camper, or other similar device used for camping; and
(b) With no permanent dwelling on it;
(6) Commission means the State Real Estate Commission;
(7) Controlling persons of a membership camping operator means each director and officer and each owner of twenty-five percent or more of the stock of the operator, if the operator is a corporation, each general partner and each owner of twenty-five percent or more of the partnership or other interests, if the operator is a general or limited partnership or other person doing business as a membership camping operator, and each member owning twenty-five percent or more of the limited liability company, if the operator is a limited liability company;
(8) Facilities means any of the following amenities provided and located on the campground: Campsites; rental trailers; swimming pools; sport courts; recreation buildings and trading posts; or grocery stores;
(9) Membership camping contract means an agreement offered or sold within this state evidencing a purchaser's right to use a campground of a membership camping operator for more than thirty days during the term of the agreement;
(10) Membership camping operator or operator means any person, other than one who is tax exempt under section 501(c)(3) of the Internal Revenue Code, who owns or operates a campground and offers or sells membership camping contracts paid for by a fee or periodic payments. Membership camping operator does not include the operator of a mobile home park as defined in section 76-1464;
(11) Offer means an inducement, solicitation, or attempt to encourage a person to acquire a membership camping contract;
(12) Person means any individual, partnership, limited liability company, firm, corporation, or association;
(13) Purchaser means a person who enters into a membership camping contract with a membership camping operator and obtains the right to use the campground owned or operated by the membership camping operator;
(14) Sale or sell means entering into or other disposition of a membership camping contract for value. For purposes of this subdivision, value does not include a fee to offset the reasonable costs of a transfer of a membership camping contract; and
(15) Salesperson means any individual, other than a membership camping operator, who is engaged in obtaining commitments of persons to enter into membership camping contracts by making a direct sales presentation to the person but does not include any individual engaged in the referral of persons without making any representations about the camping program or a direct sales presentation to such persons.
No person shall, in connection with the offering, sale, or lease of an interest in a membership campground:
(1) Employ any device, scheme, or artifice to defraud;
(2) Make any untrue statement of a material fact;
(3) Fail to state a material fact necessary to make a statement clear;
(4) Issue, circulate, or publish any prospectus, circular, advertisement, printed matter, document, pamphlet, leaflet, or other literature containing an untrue statement of a material fact or that fails to state a material fact necessary to make the statements on the literature clear; or
(5) Issue, circulate, or publish any advertising matter or make any written representation unless the name of the person issuing, circulating, or publishing the matter or making the representation is clearly indicated.
The Membership Campground Act shall not apply to the following transactions:
(1) The offer, sale, or transfer by any one person of not more than one membership camping contract in any twelve-month period;
(2) The offer or sale by a government, government agency, or other subdivision of government;
(3) The bona fide pledge of a membership camping contract; and
(4) Transactions subject to regulation pursuant to the Nebraska Time-Share Act.
(1) A membership camping operator shall provide a disclosure statement to a purchaser or prospective purchaser before the person signs a membership camping contract or gives any money or thing of value for the purchase of a membership camping contract.
(2) The front cover or first page of the disclosure statement shall contain only the following in the order stated:
(a) Membership camping operator's disclosure statement printed at the top in boldface type of a minimum size of ten points;
(b) The name and principal business address of the membership camping operator and any material affiliate of the membership camping operator;
(c) A statement that the membership camping operator is in the business of offering for sale membership camping contracts;
(d) A statement printed in double-spaced, boldface type of a minimum size of ten points which reads as follows:
THIS DISCLOSURE STATEMENT CONTAINS IMPORTANT MATTERS TO BE CONSIDERED IN THE EXECUTION OF A MEMBERSHIP CAMPING CONTRACT. THE MEMBERSHIP CAMPING OPERATOR IS REQUIRED BY LAW TO DELIVER TO YOU A COPY OF THIS DISCLOSURE STATEMENT BEFORE YOU EXECUTE A MEMBERSHIP CAMPING CONTRACT. THE STATEMENTS CONTAINED IN THIS DOCUMENT ARE ONLY SUMMARY IN NATURE. YOU, AS A PROSPECTIVE PURCHASER, SHOULD REVIEW ALL REFERENCES, EXHIBITS, CONTRACT DOCUMENTS, AND SALES MATERIALS. YOU SHOULD NOT RELY UPON ANY ORAL REPRESENTATIONS AS BEING CORRECT. ANY ORAL MISREPRESENTATION SHALL BE A VIOLATION OF THE MEMBERSHIP CAMPGROUND ACT. REFER TO THIS DOCUMENT AND TO THE ACCOMPANYING EXHIBITS FOR CORRECT REPRESENTATIONS. THE MEMBERSHIP CAMPING OPERATOR IS PROHIBITED FROM MAKING ANY REPRESENTATIONS WHICH CONFLICT WITH THOSE CONTAINED IN THE CONTRACT AND THIS DISCLOSURE STATEMENT; and
(e) A statement printed in double-spaced, boldface type of a minimum size of ten points which reads as follows:
IF YOU EXECUTE A MEMBERSHIP CAMPING CONTRACT, YOU HAVE THE UNQUALIFIED RIGHT TO CANCEL THE CONTRACT. THIS RIGHT OF CANCELLATION CANNOT BE WAIVED. THE RIGHT TO CANCEL EXPIRES AT MIDNIGHT ON THE THIRD BUSINESS DAY FOLLOWING THE DATE ON WHICH THE CONTRACT WAS EXECUTED OR THE DATE OF RECEIPT OF THIS DISCLOSURE STATEMENT, WHICHEVER EVENT OCCURS LATER. TO CANCEL THE MEMBERSHIP CAMPING CONTRACT, YOU, AS THE PURCHASER, MUST HAND DELIVER OR MAIL NOTICE OF YOUR INTENT TO CANCEL TO THE MEMBERSHIP CAMPING OPERATOR AT THE ADDRESS SHOWN IN THE MEMBERSHIP CAMPING CONTRACT, POSTAGE PREPAID. THE MEMBERSHIP CAMPING OPERATOR IS REQUIRED BY LAW TO RETURN ALL MONEY PAID BY YOU IN CONNECTION WITH THE EXECUTION OF THE MEMBERSHIP CAMPING CONTRACT UPON YOUR PROPER AND TIMELY CANCELLATION OF THE CONTRACT AND RETURN OF ALL MEMBERSHIP AND RECIPROCAL-USE PROGRAM MATERIALS FURNISHED AT THE TIME OF PURCHASE.
(3) The following pages of the disclosure statement shall contain all of the following in the order stated:
(a) The name, principal occupation, and address of every director, partner, limited liability company member, or controlling person of the membership camping operator;
(b) A description of the nature of the purchaser's right or license to use the campground and the facilities which are to be available for use by purchasers;
(c) A description of the membership camping operator's experience in the membership camping business, including the length of time the operator has been in the membership camping business;
(d) The location of each of the campgrounds which is to be available for use by purchasers and a description of the facilities at each campground which are currently available for use by purchasers. Facilities which are planned, incomplete, or not yet available for use shall be clearly identified as incomplete or unavailable. A description of any facilities that are or will be available to nonpurchasers and a projected date of completion shall also be provided. The description shall include, but not be limited to, the number of campsites in each campground and campsites in each campground with full or partial hookups, swimming pools, tennis courts, recreation buildings, restrooms and showers, laundry rooms, trading posts, and grocery stores;
(e) The fees and charges that purchasers are or may be required to pay for the use of the campground or any facilities;
(f) Any initial, additional, or special fee due from the purchaser, together with a description of the purpose and method of calculating the fee;
(g) The extent to which financial arrangements, if any, have been provided for the completion of facilities, together with a statement of the membership camping operator's obligation to complete planned facilities. The statement shall include a description of any restrictions or limitations on the membership camping operator's obligation to begin or to complete the facilities;
(h) The names of the managing entity, if any, and the significant terms of any management contract, including, but not limited to, the circumstances under which the membership camping operator may terminate the management contract;
(i) A statement, whether by way of supplement or otherwise, of the rules, regulations, restrictions, or covenants regulating the purchaser's use of the campground and the facilities which are to be available for use by the purchaser, including a statement of whether and how the rules, regulations, restrictions, or covenants may be changed;
(j) A statement of the policies covering the availability of campsites, the availability of reservations, and the conditions under which they are made;
(k) A statement of any grounds for forfeiture of a purchaser's membership camping contract;
(l) A statement of whether the membership camping operator has the right to withdraw permanently from use all or any portion of any campground devoted to membership camping and, if so, the conditions under which the withdrawal shall be permitted;
(m) A statement describing the material terms and conditions of any reciprocal program to be available to the purchaser, including a statement concerning whether the purchaser's participation in any reciprocal program is dependent on the continued affiliation of the membership camping operator with that reciprocal program, whether additional costs may be required to use reciprocal facilities, and whether the membership camping operator reserves the right to terminate such affiliation;
(n) As to all memberships offered by the membership camping operator at each campground, all of the following:
(i) The form of membership offered;
(ii) The types of duration of membership along with a summary of the major privileges, restrictions, and limitations applicable to each type;
(iii) Provisions that have been made for public utilities at each campsite, including water, electricity, telephone, and sewage facilities; and
(iv) The number of memberships to be sold to that campground; and
(o) A statement of the assistance, if any, that the membership camping operator will provide to the purchaser in the resale of membership camping contracts and a detailed description of how any such resale program is operated.
The membership camping operator shall deliver to the purchaser a fully executed copy of a membership camping contract in writing, which contract shall include at least the following information:
(1) The name of the membership camping operator and the address of its principal place of business;
(2) The actual date the membership camping contract was executed by the purchaser;
(3) The total financial obligation imposed on the purchaser by the contract, including the initial purchase price and any additional charge the purchaser may be required to pay;
(4) A statement that the membership camping operator is required by law to provide each purchaser with a copy of the membership camping operator's disclosure statement prior to execution of the contract and that failure to do so is a violation of the law;
(5) The full name of each salesperson involved in the execution of the membership camping contract; and
(6) In immediate proximity to the space reserved for the purchaser's signature, a conspicuous statement printed in double-spaced, boldface type of a minimum size of ten points:
YOU, THE PURCHASER, MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR OBLIGATION AT ANY TIME WITHIN THREE BUSINESS DAYS FOLLOWING THE DATE OF EXECUTION OF THE CONTRACT OR THE RECEIPT OF THE DISCLOSURE STATEMENT FROM THE MEMBERSHIP CAMPING OPERATOR, WHICHEVER EVENT OCCURS LATER. TO CANCEL THE CONTRACT, HAND DELIVER OR MAIL A POSTAGE PREPAID WRITTEN CANCELLATION TO THE MEMBERSHIP CAMPING OPERATOR AT THE ADDRESS LISTED ON THIS CONTRACT. UPON CANCELLATION AND RETURN OF ALL MEMBERSHIP AND RECIPROCAL-USE PROGRAM MATERIALS FURNISHED AT THE TIME OF PURCHASE, YOU WILL RECEIVE A REFUND OF ALL MONEY PAID WITHIN THIRTY CALENDAR DAYS AFTER THE MEMBERSHIP CAMPING OPERATOR RECEIVES NOTICE OF YOUR CANCELLATION.
A purchaser shall have the right to cancel a membership camping contract within three business days following the date the contract is executed or within three business days following the date of delivery of the written disclosure statement required by section 76-2110, whichever is later. The right to cancel may not be waived and any attempt to obtain such a waiver shall be unlawful and considered a violation of the Membership Campground Act.
A purchaser may cancel the contract by hand delivering a written statement of cancellation or by mailing, postage prepaid, such a statement to the membership camping operator. The cancellation shall be deemed effective upon mailing.
Upon cancellation and return of all membership and reciprocal-use materials furnished at the time of purchase, the membership camping operator shall refund to the purchaser all payments and other consideration given by the purchaser. The refund shall be made within thirty calendar days after the membership camping operator receives notice of the cancellation and may, when payment has been made by credit card, be made by an appropriate credit to the purchaser's account. If the membership camping operator fails to refund the payment or other consideration given within the thirty-day period, it shall be presumed that the membership camping operator is willfully and wrongfully retaining the payment or other consideration. The willful and wrongful retention of a payment or other consideration in violation of this section shall render the membership camping operator liable for the amount of that portion of the payment or other consideration withheld from the purchaser, together with reasonable attorney's fees and court costs.
The membership camping operator or salesperson shall orally inform the purchaser at the time the contract is executed of the right to cancel the contract as provided in this section.
A purchaser's remedy for errors in or omissions from the membership camping contract, the materials delivered to the purchaser at the time of sale, or any of the disclosures required in section 76-2117 shall be limited to a right of cancellation and refund of the payment made or consideration given by the purchaser, except that such limitation shall not apply to errors or omissions from the contract or disclosures or other requirements of the Membership Campground Act which are part of a scheme to willfully misstate or omit the information required. Reasonable attorney's fees and court costs shall be awarded to the prevailing party in any action under this section.
(1) Any advertisement, communication, or sales literature relating to membership camping contracts, including oral statements by a salesperson or any other person, shall not contain:
(a) Any untrue statement of material fact or any omission of material fact which would make the statements misleading in light of the circumstances under which the statements were made;
(b) Any statement or representation that the membership camping contracts are offered without risk or that loss is impossible; or
(c) Any statement or representation or pictorial presentation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.
(2) A person shall not by any means, as part of an advertising program, offer any item of value as an inducement to the recipient to visit a location, attend a sales presentation, or contact a salesperson unless the person clearly and conspicuously discloses in writing in the offer in readily understandable language each of the following:
(a) The name and street address of the owner of the real or personal property or the provider of the services which are the subject of such visit, sales presentation, or contact with a salesperson;
(b) A general description of the business of the owner or provider identified and the purpose of any requested visit, sales presentation, or contact with a salesperson, including a general description of the facilities or proposed facilities or services which are the subject of the sales presentation;
(c) A statement of the odds, in arabic numerals, of receiving each item offered;
(d) All restrictions, qualifications, and other conditions that shall be satisfied before the recipient is entitled to receive the item, including all of the following:
(i) Any deadline by which the recipient shall visit the location, attend the sales presentation, or contact the salesperson in order to receive the item;
(ii) The approximate duration of any visit and sales presentation; and
(iii) Any other conditions, such as a minimum age qualification, a financial qualification, or a requirement that if the recipient is married both spouses be present in order to receive the item;
(e) A statement that the owner or provider reserves the right to provide a rain check or a substitute or like item if these rights are reserved;
(f) A statement that a recipient who receives an offered item may request and will receive evidence showing that the item provided matches the item randomly or otherwise selected for distribution to that recipient; and
(g) All other rules, terms, and conditions of the offer, plan, or program.
(3) A person, a person's employee, or an agent of the person shall not offer any item relating to a membership campground contract if the person, employee, or agent knows or has reason to know that the offered item will not be available in a sufficient quantity based on the reasonably anticipated response to the offer.
(4) A person, a person's employee, or an agent of the person shall not fail to provide any offered item relating to a membership campground contract which a recipient is entitled to receive, unless the failure to provide the item is due to a higher than reasonably anticipated response to the offer which caused the item to be unavailable and the offer discloses the reservation of a right to provide a rain check or a like or substitute item if the offered item is unavailable.
(5) If the person, person's employee, or agent of the person making an offer is unable to provide an offered item relating to a membership campground contract because of limitations of supply not reasonably foreseeable or controllable by the person, employee, or agent making the offer, the person, employee, or agent making the offer shall inform the recipient of the recipient's right to receive a rain check for the item offered or receive a like or substitute item of equal or greater value at no additional cost or obligation to the recipient.
(6) If a rain check is provided, the person, employee, or agent making an offer relating to a membership campground contract, within a reasonable time, and in any event not later than thirty calendar days after the rain check is issued, shall deliver the agreed item to the recipient's address without additional cost or obligation to the recipient unless the item for which the rain check is provided remains unavailable because of limitations of supply not reasonably foreseeable or controllable by the person, employee, or agent making the offer. If the item is unavailable for such reasons, the person, employee, or agent, not later than thirty days after the expiration of the thirty-day period, shall deliver a like or substitute item of equal or greater retail value to the recipient.
(7) On the request of a recipient who has received or claims a right to receive any offered item, the person, person's employee, or agent of the person making an offer relating to a membership campground contract shall furnish to the recipient sufficient evidence showing that the item provided matches the item randomly or otherwise selected for distribution to that recipient.
(8) A person, person's employee, or agent of the person making an offer relating to a membership campground contract shall not do any of the following:
(a) Misrepresent the size, quantity, identity, or quality of any prize, gift, money, or other item of value offered;
(b) Misrepresent in any manner the odds of receiving a particular gift, prize, amount of money, or other item of value;
(c) Represent directly or by implication that the number of participants has been significantly limited or that any person has been selected to receive a particular prize, gift, money, or other item of value, unless the representation is true;
(d) Label any offer a notice of termination or notice of cancellation; and
(e) Misrepresent in any manner the offer, plan, or program.
Whenever in the judgment of the commission any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of the Membership Campground Act, the Attorney General may maintain an action in the name of the State of Nebraska in the district court of the county in which such violation or threatened violation occurred or in the district court of Lancaster County to abate and temporarily and permanently enjoin such acts and practices and to enforce compliance with the Membership Campground Act. The Attorney General shall not be required to give any bond nor shall any court costs be adjudged against the state.
The Attorney General may seek a civil penalty of not more than ten thousand dollars for each violation of the Membership Campground Act in the district court of Lancaster County. Each day of continued violation shall constitute a separate offense.
A membership camping contract or an offer or a sale of a membership camping contract shall not be subject to the Securities Act of Nebraska or the Nebraska Time-Share Act.
The commission may adopt and promulgate rules and regulations to carry out the Membership Campground Act.
Sections 76-2201 to 76-2250 shall be known and may be cited as the Real Property Appraiser Act.
The Legislature finds that as a result of the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Nebraska's laws providing for regulation of real property appraisers require restructuring and updating in order to comply with such acts. Compliance with the acts is necessary to ensure an adequate number of real property appraisers in Nebraska to conduct appraisals of real estate involved in federally related transactions as defined in such acts.
For purposes of the Real Property Appraiser Act, the definitions found in sections 76-2203.01 to 76-2219.02 shall be used.
Accredited degree-awarding community college, college, or university means an institution that is approved or accredited by an accreditation association or agency recognized by the United States Secretary of Education.
Appraisal means (1) as a noun, an opinion of value or the act or process of developing an opinion of value or (2) as an adjective, pertaining to appraising and related functions such as real property appraisal practice. An appraisal is numerically expressed as a specific amount, as a range of numbers, or as a relationship to a previous value opinion or numerical benchmark.
Appraisal Foundation means The Appraisal Foundation that was incorporated as an Illinois not-for-profit corporation on November 30, 1987.
Appraisal review means (1) as a noun, the act or process of developing an opinion about the quality of a real property appraiser's work that was performed as part of real property appraisal practice or (2) as an adjective, of or pertaining to an opinion about the quality of another real property appraiser's work that was performed as part of real property appraisal practice.
Appraiser Qualifications Board means the Appraiser Qualifications Board of the Appraisal Foundation.
Assignment means a valuation service that is performed by a real property appraiser as a consequence of an agreement with a client.
Assignment results means the opinions or conclusions, not limited to value, developed by a real property appraiser when performing valuation services specific to real property appraisal practice.
Board means the Real Property Appraiser Board.
Certified general real property appraiser means a person who holds a valid credential as a certified general real property appraiser issued under the Real Property Appraiser Act.
Certified real property appraiser means a person who holds a valid credential as a certified general real property appraiser or a valid credential as a certified residential real property appraiser issued under the Real Property Appraiser Act.
Certified residential real property appraiser means a person who holds a valid credential as a certified residential real property appraiser issued under the Real Property Appraiser Act.
Client means the person or persons who engage a real property appraiser by employment or contract in a specific assignment whether directly or through an agent.
Completed application means an application for credentialing has been processed, all statutory requirements for a credential to be issued have been met by the applicant, and all required documentation is submitted to the board for final consideration.
Complex residential real property means residential property in which the property to be appraised, the form of ownership, or the market conditions are complicated or atypical.
Credential means a registration, license, or certificate.
Credential holder means (1) any person who holds a valid credential as a trainee real property appraiser, licensed real property appraiser, certified residential real property appraiser, or certified general real property appraiser and (2) any person who holds a temporary credential to engage in real property appraisal practice within this state.
Education provider means: Any real property appraisal or real-estate-related organization; proprietary school; accredited degree-awarding community college, college, or university; state or federal agency; or such other provider that may be approved by the board that provides real property appraiser training or education.
Evaluation assignment means an assignment that relates to the nature, quality, or utility of identified real estate or identified real property and typically does not include an opinion of value. Evaluation assignment does not include reports prepared by experts from professional disciplines other than real property appraisal such as: A soil test or soil analysis of identified real estate prepared by a civil engineer; a title opinion or zoning analysis of identified real estate prepared by a lawyer; an architectural analysis of identified improved real estate prepared by an architect; and a property management analysis of identified improved real estate prepared by a property manager or property management consultant.
Fifteen-hour National Uniform Standards of Professional Appraisal Practice Course means the course as approved by the Appraiser Qualifications Board.
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 means the act as it existed on January 1, 2024.
Instructor means a person approved by the board that meets or exceeds the instructor requirements specified in the Real Property Appraiser Act and rules and regulations of the board and is responsible for ensuring that the education activity content is communicated to the activity's audience as presented to the board for approval and that the education activity contributes to the quality of real property valuation services provided to the public. A person that communicates assigned materials or a portion of the education activity content under the authorization of the education provider, but is not responsible for the education activity content, is not an instructor.
Jurisdiction means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
Jurisdiction of practice means any jurisdiction in which an appraiser devotes his or her time engaged in real property appraisal practice.
Licensed residential real property appraiser means a person who holds a valid credential as a licensed residential real property appraiser issued under the Real Property Appraiser Act.
Person means an individual or a firm, a partnership, a limited partnership, a limited liability company, an association, a corporation, or any other group engaged in joint business activities, however organized.
PAREA program means a practical applications of real estate appraisal program approved by the Appraiser Qualifications Board as prescribed by rules and regulations of the Real Property Appraiser Board.
Personal inspection means a real property appraiser's in-person observation of identified real estate or real property without the use of special testing or special equipment performed as part of an evaluation assignment, valuation assignment, or appraisal review assignment.
Real estate means a parcel or tract of land, including improvements, if any.
Real property means one or more defined interests, benefits, or rights inherent in the ownership of real estate.
Real property appraisal practice means any act or process performed by a real property appraiser involved in developing and reporting an analysis, opinion, or conclusion relating to the specified interests in or aspects of identified real estate or real property or an appraisal review. Real property appraisal practice includes, but is not limited to, evaluation assignments, valuation assignments, and appraisal review assignments.
Real property appraiser means a person who is a credential holder.
Report means any communication, written, oral, or by electronic means, of assignment results transmitted to the client or a party authorized by the client upon completion of an assignment. Testimony related to assignment results is deemed to be an oral report.
Signature means personalized evidence indicating authentication of the work performed by the real property appraiser and the acceptance of the responsibility for content, analyses, conclusions, and compliance with the Uniform Standards of Professional Appraisal Practice in a report.
Trainee real property appraiser means a person who holds a valid credential as a trainee real property appraiser issued under the Real Property Appraiser Act.
(1) Except as provided in subsections (2) through (6) of this section, two-year continuing education period means the period of twenty-four months commencing on January 1 and completed on December 31 of the following year.
(2) For a new real property appraiser credentialed prior to July 1 pursuant to section 76-2228.01, 76-2230, 76-2231.01, or 76-2232, two-year continuing education period means the period commencing on the date of initial credentialing and completed on December 31 of the following year.
(3) For a new real property appraiser credentialed on or after July 1 pursuant to section 76-2228.01, 76-2230, 76-2231.01, or 76-2232, two-year continuing education period means the period of twenty-four months commencing on January 1 of the year following the date of initial credentialing.
(4) For a new real property appraiser credentialed pursuant to section 76-2233 who held a valid credential of the same class to engage in real property appraisal practice under the laws of another jurisdiction on January 1 of the year in which the credential was issued by the board, two-year continuing education period means the period of twenty-four months commencing on January 1 of the year in which the credential was issued by the board.
(5) For a new real property appraiser credentialed pursuant to section 76-2233 who (a) did not hold a valid credential of the same class to engage in real property appraisal practice under the laws of another jurisdiction on January 1 of the year in which the credential was issued by the board and (b) was credentialed pursuant to section 76-2233 prior to July 1, two-year continuing education period means the period commencing on the date of initial credentialing and completed on December 31 of the following year.
(6) For a new real property appraiser credentialed pursuant to section 76-2233 who (a) did not hold a valid credential of the same class to engage in real property appraisal practice under the laws of another jurisdiction on January 1 of the year in which the credential was issued by the board and (b) was credentialed pursuant to section 76-2233 on or after July 1, two-year continuing education period means the period of twenty-four months commencing on January 1 of the year following the date of initial credentialing.
Uniform Standards of Professional Appraisal Practice means the standards adopted and promulgated by The Appraisal Foundation as the standards existed on January 1, 2024.
Valuation assignment means:
(1) An appraisal that estimates the value of identified real estate or identified real property at a particular point in time; or
(2) A valuation service performed as a consequence of an agreement between a real property appraiser and a client.
Valuation services means services pertaining to an aspect of property value, including a service performed by real property appraisers.
Workfile means documentation necessary to support a real property appraiser's analysis, opinions, and conclusions.
(1) Except as provided in section 76-2221, it shall be unlawful for anyone to act as a real property appraiser in this state without first obtaining proper credentialing as required under the Real Property Appraiser Act.
(2) Except as provided in section 76-2221, any person who, directly or indirectly for another, offers, attempts, agrees to engage, or engages in real property appraisal practice, or who advertises or holds himself or herself out to the general public as a real property appraiser, shall be deemed a real property appraiser within the meaning of the Real Property Appraiser Act, and such action shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such person in any action arising out of such act. Committing a single act described in this section by a person required to be credentialed under the Real Property Appraiser Act and not so credentialed shall constitute a violation of the act for which the board may impose sanctions pursuant to this section for the protection of the public health, safety, or welfare.
(3) The board may issue a cease and desist order against any person who violates this section. Such order shall be final ten days after issuance unless such person requests a hearing pursuant to section 76-2240. The board may, through the Attorney General, obtain an order from the district court for the enforcement of the cease and desist order.
The Real Property Appraiser Act shall not apply to:
(1) Any person who is a salaried employee of (a) the federal government, (b) any agency of the state government or a political subdivision which appraises real estate, (c) any insurance company authorized to do business in this state, or (d) any bank, savings bank, savings and loan association, building and loan association, credit union, or small loan company licensed by this state or supervised or regulated by or through federal enactments covering financial institutions who renders an estimate or opinion of value of real estate or any interest in real estate when such estimate or opinion is rendered in connection with the salaried employee's employment for an entity listed in subdivisions (a) through (d) of this subdivision, except that any salaried employee of the entities listed in subdivisions (a) through (d) of this subdivision who signs a report as a credentialed real property appraiser shall be subject to the act and the Uniform Standards of Professional Appraisal Practice. Any salaried employee of the entities listed in subdivisions (a) through (d) of this subdivision who is a credentialed real property appraiser and who does not sign a report as a credentialed real property appraiser shall include the following disclosure prominently with such report: This opinion of value may not meet the minimum standards contained in the Uniform Standards of Professional Appraisal Practice and is not governed by the Real Property Appraiser Act;
(2) A person referred to in subsection (1) of section 81-885.16;
(3) Any person who provides assistance (a) in obtaining the data upon which assignment results are based, (b) in the physical preparation of a report, such as taking photographs, preparing charts, maps, or graphs, or typing or printing the report, or (c) that does not directly involve the exercise of judgment in arriving at the assignment results set forth in the report;
(4) Any owner of real estate, employee of the owner, or attorney licensed to practice law in this state representing the owner who renders an estimate or opinion of value of the real estate or any interest in the real estate when such estimate or opinion is for the purpose of real estate taxation, or any other person who renders such an estimate or opinion of value when that estimate or opinion requires a specialized knowledge that a real property appraiser would not have;
(5) Any owner of real estate, employee of the owner, or attorney licensed to practice law in this state representing the owner who renders an estimate or opinion of value of real estate or any interest in real estate or damages thereto when such estimate or opinion is offered as testimony in any condemnation proceeding, or any other person who renders such an estimate or opinion when that estimate or opinion requires a specialized knowledge that a real property appraiser would not have;
(6) Any owner of real estate, employee of the owner, or attorney licensed to practice law in this state representing the owner who renders an estimate or opinion of value of the real estate or any interest in the real estate when such estimate or opinion is offered in connection with a legal matter involving real property;
(7) Any person appointed by a county board of equalization to act as a referee pursuant to section 77-1502.01, except that any person who also practices as an independent real property appraiser for others shall be subject to the Real Property Appraiser Act and shall be credentialed prior to engaging in such other real property appraisal practice. Any real property appraiser appointed to act as a referee pursuant to section 77-1502.01 and who prepares a report for the county board of equalization shall not sign such report as a credentialed real property appraiser and shall include the following disclosure prominently with such report: This opinion of value may not meet the minimum standards contained in the Uniform Standards of Professional Appraisal Practice and is not governed by the Real Property Appraiser Act;
(8) Any person who is appointed to serve as an appraiser pursuant to section 76-706, except that if such person is a credential holder, he or she shall (a) be subject to the scope of real property appraisal practice applicable to his or her classification of credential and (b) comply with the Uniform Standards of Professional Appraisal Practice, excluding standards 1 through 10; or
(9) Any person, including an independent contractor, retained by a county to assist in the appraisal of real property as performed by the county assessor of such county subject to the standards established by the Tax Commissioner pursuant to section 77-1301.01. A person so retained shall be under the direction and responsibility of the county assessor.
(1) The Real Property Appraiser Board is hereby created. The board shall consist of five members. One member who is a certified real property appraiser shall be selected from each of the three congressional districts, and two members shall be selected at large. The two members selected at large shall include one representative of financial institutions and one licensed real estate broker. The Governor shall appoint the members of the board.
(2) The term of each member of the board shall be five years. Upon the expiration of his or her term, a member of the board shall continue to hold office until the appointment and qualification of his or her successor. No person shall serve as a member of the board for consecutive terms. Any vacancy shall be filled in the same manner as the original appointment. The Governor may remove a member for cause.
(3) The members of the board shall elect a chairperson during the first meeting of each year from among the members.
(4) Three members of the board, at least two of whom are real property appraisers, shall constitute a quorum.
(5) Each member of the board shall receive a per diem of one hundred dollars per day (a) for each scheduled meeting of the board or a committee of the board at which the member is present and (b) actually spent in traveling to and from and attending meetings and conferences of the Association of Appraiser Regulatory Officials and its committees and subcommittees or of The Appraisal Foundation and its committees and subcommittees, board committee meetings, or other business as authorized by the board.
(6) Each member of the board shall be reimbursed for expenses incident to the performance of his or her duties under the Real Property Appraiser Act and Nebraska Appraisal Management Company Registration Act as provided in sections 81-1174 to 81-1177.
(1) The Real Property Appraiser Board shall administer and enforce the Real Property Appraiser Act and may:
(a) Receive applications for credentialing under the act, process such applications and regulate the issuance of credentials to qualified applicants, and maintain a directory of the names and addresses of persons who receive credentials under the act;
(b) Hold meetings, public hearings, informal conferences, and administrative hearings, prepare or cause to be prepared specifications for all real property appraiser classifications, solicit bids and enter into contracts with one or more testing services, and administer or contract for the administration of examinations approved by the Appraiser Qualifications Board in such places and at such times as deemed appropriate;
(c) Develop the specifications for credentialing examinations, including timing, location, and security necessary to maintain the integrity of the examinations;
(d) Review the procedures and criteria of a contracted testing service to ensure that the testing meets with the approval of the Appraiser Qualifications Board;
(e) Collect all fees required or permitted by the act. The Real Property Appraiser Board shall remit all such receipts to the State Treasurer for credit to the Real Property Appraiser Fund. In addition, the board may collect and transmit to the appropriate federal authority any fees established under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989;
(f) Establish appropriate administrative procedures for disciplinary proceedings conducted pursuant to the Real Property Appraiser Act;
(g) Issue subpoenas to compel the attendance of witnesses and the production of books, documents, records, and other papers, administer oaths, and take testimony and require submission of and receive evidence concerning all matters within its jurisdiction. In case of disobedience of a subpoena, the Real Property Appraiser Board may make application to the district court of Lancaster County to require the attendance and testimony of witnesses and the production of documentary evidence. If any person fails to obey an order of the court, he or she may be punished by the court as for contempt thereof;
(h) Deny an application or censure, suspend, or revoke a credential if it finds that the applicant or credential holder has committed any of the acts or omissions set forth in section 76-2238 or otherwise violated the act. Any disciplinary matter may be resolved through informal disposition pursuant to section 84-913;
(i) Take appropriate disciplinary action against a credential holder if the Real Property Appraiser Board determines that a credential holder has violated any provision of the act or the Uniform Standards of Professional Appraisal Practice;
(j) Enter into consent decrees and issue cease and desist orders upon a determination that a violation of the act has occurred;
(k) Promote research and conduct studies relating to the profession of real property appraisal, sponsor real property appraisal educational activities, and incur, collect fees for, and pay the necessary expenses in connection with activities which shall be open to all credential holders;
(l) Establish and adopt minimum standards for appraisals as required under section 76-2237;
(m) Adopt and promulgate rules and regulations to carry out the act. The rules and regulations may include provisions establishing minimum standards for education providers, courses, and instructors. The rules and regulations shall be adopted and promulgated pursuant to the Administrative Procedure Act; and
(n) Do all other things necessary to carry out the Real Property Appraiser Act.
(2) The Real Property Appraiser Board shall also administer and enforce the Nebraska Appraisal Management Company Registration Act.
In order to administer and enforce the Real Property Appraiser Act, the board may hire a director and other staff, rent office space, and acquire other facilities and equipment. The board may contract for administrative assistance, including facilities, equipment, supplies, and personnel that are required by the board to carry out its responsibilities under the act.
The members of the board and the board's employees or persons under contract with the board shall be immune from any civil action or criminal prosecution for initiating or assisting in any lawful investigation of the actions of or any disciplinary proceeding concerning a credential holder pursuant to the Real Property Appraiser Act if such action is taken without malicious intent and in the reasonable belief that it was taken pursuant to the powers vested in the members of the board or such employees or persons.
There is hereby created the Real Property Appraiser Fund. The board may use the fund for the administration and enforcement of the Real Property Appraiser Act and to meet the necessary expenditures of the board. The fund shall include a sufficient cash fund balance as determined by the board. The expense of administering and enforcing the act shall not exceed the money collected by the board under the act. Transfers may be made from the fund to the General Fund at the direction of the Legislature. Any money in the Real Property Appraiser 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.
(1) Applications for initial credentials, upgrade of credentials, credentials through reciprocity, temporary credentials, and renewal of credentials, including authorization to take the appropriate examination, shall be made in writing to the board on forms approved by the board. The payment of the appropriate fee in an amount established by the board pursuant to section 76-2241 shall accompany all applications.
(2) Applications for credentials shall include the applicant's social security number and such other information as the board may require.
(3) At the time of filing an application for a credential, the applicant shall sign a pledge that he or she has read and will comply with the Uniform Standards of Professional Appraisal Practice. Each applicant shall also certify that he or she understands the types of misconduct for which disciplinary proceedings may be initiated.
(4) To qualify for an initial credential, an upgrade of a credential, a credential through reciprocity, a temporary credential, or a renewal of a credential, an applicant shall:
(a) Certify that disciplinary proceedings are not pending against him or her in any jurisdiction or state the nature of any pending disciplinary proceedings;
(b) Certify that he or she has not surrendered an appraiser credential, or any other registration, license, or certification, issued by any other regulatory agency or held in any other jurisdiction, in lieu of disciplinary action pending or threatened within the five-year period immediately preceding the date of application;
(c) Certify that his or her appraiser credential, or any other registration, license, or certification, issued by any other regulatory agency or held in any other jurisdiction, has not been revoked or suspended within the five-year period immediately preceding the date of application;
(d) Not have been convicted of, including a conviction based upon a plea of guilty or nolo contendere:
(i) Any felony or, if so convicted, has had his or her civil rights restored;
(ii) Any crime of fraud, dishonesty, breach of trust, money laundering, misrepresentation, or deceit involving real estate, financial services, or in the making of an appraisal within the five-year period immediately preceding the date of application; or
(iii) Any other crime which is related to the qualifications, functions, or duties of a real property appraiser within the five-year period immediately preceding the date of application;
(e) Certify that no civil judicial actions, including dismissal with settlement, in connection with real estate, financial services, or in the making of an appraisal have been brought against him or her within the five-year period immediately preceding the date of application;
(f) Demonstrate character and general fitness such as to command the confidence and trust of the public; and
(g) Not possess a background that would call into question public trust or a credential holder's fitness for credentialing.
(5) Credentials shall be issued only to persons who have a good reputation for honesty, trustworthiness, integrity, and competence to perform real property appraisal practice assignments in such manner as to safeguard the interest of the public and only after satisfactory proof of such qualification has been presented to the board upon request and a completed application has been approved.
(6) No credential shall be issued to a person other than an individual.
There shall be four classes of credentials issued to real property appraisers as follows:
(1) Trainee real property appraiser, which classification shall consist of those persons who meet the requirements set forth in section 76-2228.01;
(2) Licensed residential real property appraiser, which classification shall consist of those persons who meet the requirements set forth in section 76-2230;
(3) Certified residential real property appraiser, which classification shall consist of those persons who meet the requirements set forth in section 76-2231.01; and
(4) Certified general real property appraiser, which classification shall consist of those persons who meet the requirements set forth in section 76-2232.
(1) To qualify for a credential as a trainee real property appraiser, an applicant shall:
(a) Be at least nineteen years of age;
(b)(i)(A) If submitting an application on or before December 31, 2025, have successfully completed and passed examination for no fewer than seventy-five class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented. Except for the fifteen-hour National Uniform Standards of Professional Appraisal Practice Course, which shall be completed within the two-year period immediately preceding submission of the application, all class hours shall be completed within the five-year period immediately preceding submission of the application; or
(B) If submitting an application after December 31, 2025, have successfully completed and passed examination for no fewer than eighty-three class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented. Except for the fifteen-hour National Uniform Standards of Professional Appraisal Practice Course, which shall be completed within the two-year period immediately preceding submission of the application, all class hours shall be completed within the five-year period immediately preceding submission of the application; or
(ii) Hold a degree in real estate from an accredited degree-awarding college or university that has had all or part of its curriculum approved by the Appraiser Qualifications Board as required core curriculum or the equivalent as determined by the Appraiser Qualifications Board. The degree shall be conferred within the five-year period immediately preceding submission of the application. If the degree in real estate or equivalent as approved by the Appraiser Qualifications Board does not satisfy all required qualifying education for credentialing, the remaining class hours shall be completed in Real Property Appraiser Board-approved qualifying education pursuant to subdivision (b)(i) of this subsection;
(c) As prescribed by rules and regulations of the Real Property Appraiser Board, successfully complete a Real Property Appraiser Board-approved supervisory real property appraiser and trainee course within one year immediately preceding the date of application; and
(d) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board.
(2) Prior to engaging in real property appraisal practice, a trainee real property appraiser shall submit a written request for supervisory real property appraiser approval on a form approved by the board. The request for supervisory real property appraiser approval may be made at the time of application or any time after approval as a trainee real property appraiser.
(3) To qualify for an upgraded credential, a trainee real property appraiser shall satisfy the appropriate requirements as follows:
(a) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(b) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board for an upgraded credential, pass an appropriate examination approved by the Appraiser Qualifications Board for that upgraded credential, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(4) To qualify for a credential as a licensed residential real property appraiser, a trainee real property appraiser shall:
(a) Successfully complete and pass proctored, closed-book examinations for no fewer than seventy-five additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(b)(ii) of section 76-2230; and
(b) Meet the experience requirements pursuant to subdivision (1)(c) of section 76-2230.
(5) To qualify for a credential as a certified residential real property appraiser, a trainee real property appraiser shall:
(a) Meet the postsecondary educational requirements pursuant to subdivisions (1)(b) and (c) of section 76-2231.01;
(b)(i) If submitting an application on or before December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than one hundred twenty-five additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2231.01; or
(ii) If submitting an application after December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than one hundred seventeen additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2231.01; and
(c) Meet the experience requirements pursuant to subdivision (1)(e) of section 76-2231.01.
(6) To qualify for a credential as a certified general real property appraiser, a trainee real property appraiser shall:
(a) Meet the postsecondary educational requirements pursuant to subdivisions (1)(b) and (c) of section 76-2232;
(b)(i) If submitting an application on or before December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than two hundred twenty-five additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2232; or
(ii) If submitting an application after December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than two hundred seventeen additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2232; and
(c) Meet the experience requirements pursuant to subdivision (1)(e) of section 76-2232.
(7) The scope of real property appraisal practice for the trainee real property appraiser shall be limited to real property appraisal practice assignments that the supervisory certified real property appraiser is permitted to engage in by his or her current credential and that the supervisory real property appraiser is competent to engage in.
(1) Each trainee real property appraiser's experience shall be subject to direct supervision by a supervisory real property appraiser. To qualify as a supervisory real property appraiser, a real property appraiser shall:
(a) Be a certified residential real property appraiser or certified general real property appraiser in good standing;
(b) Have held a certified real property appraiser credential in this state, or the equivalent in any other jurisdiction, for a minimum of three years immediately preceding the date of the written request for approval as supervisory real property appraiser;
(c) Have not successfully completed disciplinary action by the board or any other jurisdiction, which action limited the real property appraiser's legal eligibility to engage in real property appraisal practice within three years immediately preceding the date the written request for approval as supervisory real property appraiser is submitted by the applicant or trainee real property appraiser on a form approved by the board;
(d) As prescribed by rules and regulations of the board, have successfully completed a board-approved supervisory real property appraiser and trainee course preceding the date the written request for approval as supervisory real property appraiser is submitted by the applicant or trainee real property appraiser on a form approved by the board; and
(e) Certify that he or she understands his or her responsibilities and obligations under the Real Property Appraiser Act as a supervisory real property appraiser and applies his or her signature to the written request for approval as supervisory real property appraiser submitted by the applicant or trainee real property appraiser.
(2) The supervisory real property appraiser shall be responsible for the training and direct supervision of the trainee real property appraiser's experience by:
(a) Accepting responsibility for the report by applying his or her signature and certifying that the report is in compliance with the Uniform Standards of Professional Appraisal Practice;
(b) Reviewing the trainee real property appraiser reports; and
(c) Conducting a personal inspection with the trainee real property appraiser as is consistent with his or her scope of real property appraisal practice until the supervisory real property appraiser determines that the trainee real property appraiser is competent in accordance with the competency rule of the Uniform Standards of Professional Appraisal Practice.
(3) A certified real property appraiser disciplined by the board or any other appraiser regulatory agency in another jurisdiction, which discipline may or may not have limited the real property appraiser's legal eligibility to engage in real property appraisal practice, shall not be eligible as a supervisory real property appraiser as of the date disciplinary action was imposed against the appraiser by the board or any other appraiser regulatory agency. The certified real property appraiser shall be considered to be in good standing and eligible as a supervisory real property appraiser upon the successful completion of disciplinary action that does not limit the real property appraiser's legal eligibility to engage in real property appraisal practice, or three years after the successful completion of disciplinary action that limits the real property appraiser's legal eligibility to engage in real property appraisal practice. Any action taken by the board or any other appraiser regulatory agency in another jurisdiction, which may or may not limit the real property appraiser's legal eligibility to engage in real property appraisal practice, involving any jurisdiction's isolated administrative responsibilities including, but not limited to, late payment of fees related to credentialing, failure to timely renew a credential, or failure to provide notification of a change in contact information, is not disciplinary action for the purpose of this subsection.
(4) The trainee real property appraiser may have more than one supervisory real property appraiser, but a supervisory real property appraiser may not supervise more than three trainee real property appraisers at one time.
(5) As prescribed by rules and regulations of the board, an appraisal experience log shall be maintained jointly by the supervisory real property appraiser and the trainee real property appraiser.
(1) To qualify for a credential as a licensed residential real property appraiser, an applicant shall:
(a) Be at least nineteen years of age;
(b)(i)(A) If submitting an application on or before December 31, 2025, have successfully completed and passed examination for no fewer than one hundred fifty class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented; or
(B) If submitting an application after December 31, 2025, have successfully completed and passed examination for no fewer than one hundred fifty-eight class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented; or
(ii) Hold a degree in real estate from an accredited degree-awarding college or university that has had all or part of its curriculum approved by the Appraiser Qualifications Board as required core curriculum or the equivalent as determined by the Appraiser Qualifications Board. If the degree in real estate or equivalent as approved by the Appraiser Qualifications Board does not satisfy all required qualifying education for credentialing, the remaining class hours shall be completed in Real Property Appraiser Board-approved qualifying education pursuant to subdivision (b)(i) of this subsection;
(c)(i) Have no fewer than one thousand hours of experience as prescribed by rules and regulations of the Real Property Appraiser Board. The required experience shall be acceptable to the Real Property Appraiser Board and subject to review and determination as to conformity with the Uniform Standards of Professional Appraisal Practice. The experience shall have occurred during a period of no fewer than six months; or
(ii) Successfully complete a PAREA program. If the PAREA program does not satisfy all required experience for credentialing, the remaining experience hours shall be completed pursuant to subdivision (c)(i) of this subsection;
(d) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(e) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board, pass a licensed residential real property appraiser examination, certified residential real property appraiser examination, or certified general real property appraiser examination, approved by the Appraiser Qualifications Board, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(2) To qualify for an upgraded credential, a licensed residential real property appraiser shall satisfy the appropriate requirements as follows:
(a) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(b) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board for an upgraded credential, pass an appropriate examination approved by the Appraiser Qualifications Board for that upgraded credential, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(3) To qualify for a credential as a certified residential real property appraiser, a licensed residential real property appraiser shall:
(a)(i) Meet the postsecondary educational requirements pursuant to subdivisions (1)(b) and (c) of section 76-2231.01; or
(ii)(A) Have held a credential as a licensed residential real property appraiser for a minimum of five years; and
(B) Not have been subject to a nonappealable disciplinary action by the board or any other jurisdiction, which action limited the real property appraiser's legal eligibility to engage in real property appraisal practice within five years immediately preceding the date of application for the certified residential real property appraiser credential;
(b)(i) If submitting an application on or before December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than fifty additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2231.01; or
(ii) If submitting an application after December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than forty-two additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2231.01; and
(c) Meet the experience requirements pursuant to subdivision (1)(e) of section 76-2231.01.
(4) To qualify for a credential as a certified general real property appraiser, a licensed residential real property appraiser shall:
(a) Meet the postsecondary educational requirements pursuant to subdivisions (1)(b) and (c) of section 76-2232;
(b)(i) If submitting an application on or before December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than one hundred fifty additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2232; or
(ii) If submitting an application after December 31, 2025, successfully complete and pass proctored, closed-book examinations for no fewer than one hundred forty-two additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2232; and
(c) Meet the experience requirements pursuant to subdivision (1)(e) of section 76-2232.
(5) An appraiser holding a valid licensed residential real property appraiser credential shall satisfy the requirements for the trainee real property appraiser credential for a downgraded credential.
(6) The scope of real property appraisal practice for a licensed residential real property appraiser shall be limited to noncomplex residential real property or real estate having no more than four units, if any, with a transaction value, or market value if no transaction takes place, of less than one million dollars and complex residential real property or real estate having no more than four units, if any, with a transaction value, or market value if no transaction takes place, of less than four hundred thousand dollars. Subdivisions for which a development analysis or appraisal is necessary are not included in the scope of real property appraisal practice for a licensed residential real property appraiser.
(1) To qualify for a credential as a certified residential real property appraiser, an applicant shall:
(a) Be at least nineteen years of age;
(b)(i) Hold a bachelor's degree, or higher, from an accredited degree-awarding college or university;
(ii) Hold an associate's degree from an accredited degree-awarding community college, college, or university in the study of business administration, accounting, finance, economics, or real estate;
(iii) Successfully complete thirty semester hours of college-level education from an accredited degree-awarding community college, college, or university that includes:
(A) Three semester hours in each of the following: English composition; microeconomics; macroeconomics; finance; algebra, geometry, or higher mathematics; statistics; computer science; and business law or real estate law; and
(B) Three semester hours each in two elective courses in any of the topics listed in subdivision (b)(iii)(A) of this subsection, or in accounting, geography, agricultural economics, business management, or real estate;
(iv) Successfully complete thirty semester hours of the College-Level Examination Program that includes:
(A) Three semester hours in each of the following subject matter areas: College algebra; college composition modular; principles of macroeconomics; principles of microeconomics; introductory business law; and information systems; and
(B) Six semester hours in each of the following subject matter areas: College composition; and college mathematics; or
(v) Successfully complete any combination of subdivisions (b)(iii) and (iv) of this subsection that ensures coverage of all topics and hours identified in subdivision (b)(iii) of this subsection;
(c) Have his or her education evaluated for equivalency by one of the following if the college degree is from a foreign country:
(i) An accredited degree-awarding college or university;
(ii) A foreign degree credential evaluation service company that is a member of the National Association of Credential Evaluation Services; or
(iii) A foreign degree credential evaluation service company that provides equivalency evaluation reports accepted by an accredited degree-awarding college or university;
(d)(i) Have successfully completed and passed examination for no fewer than two hundred class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented; or
(ii) Hold a degree in real estate from an accredited degree-awarding college or university that has had all or part of its curriculum approved by the Appraiser Qualifications Board as required core curriculum or the equivalent as determined by the Appraiser Qualifications Board. If the degree in real estate or equivalent as approved by the Appraiser Qualifications Board does not satisfy all required qualifying education for credentialing, the remaining class hours shall be completed in Real Property Appraiser Board-approved qualifying education pursuant to subdivision (d)(i) of this subsection;
(e)(i) Have no fewer than one thousand five hundred hours of experience as prescribed by rules and regulations of the Real Property Appraiser Board. The required experience shall be acceptable to the Real Property Appraiser Board and subject to review and determination as to conformity with the Uniform Standards of Professional Appraisal Practice. The experience shall have occurred during a period of no fewer than twelve months; or
(ii) Successfully complete a PAREA program. If the PAREA program does not satisfy all required experience for credentialing, the remaining experience hours shall be completed pursuant to subdivision (e)(i) of this subsection;
(f) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(g) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board, pass a certified residential real property appraiser examination or certified general real property appraiser examination, approved by the Appraiser Qualifications Board, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(2) To qualify for an upgraded credential, a certified residential real property appraiser shall satisfy the following requirements:
(a) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(b) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board for an upgrade to a certified general real property appraiser credential, pass a certified general real property appraiser examination approved by the Appraiser Qualifications Board, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(3) To qualify for a credential as a certified general real property appraiser, a certified residential real property appraiser shall:
(a) Meet the postsecondary educational requirements pursuant to subdivisions (1)(b) and (c) of section 76-2232;
(b) Successfully complete and pass proctored, closed-book examinations for no fewer than one hundred additional class hours in board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the board, or hold a degree in real estate from an accredited degree-awarding college or university or equivalent pursuant to subdivision (1)(d)(ii) of section 76-2232; and
(c) Meet the experience requirements pursuant to subdivision (1)(e) of section 76-2232.
(4) A certified residential real property appraiser shall satisfy the requirements for the trainee real property appraiser credential and licensed residential real property appraiser credential for a downgraded credential. If requested, evidence acceptable to the Real Property Appraiser Board concerning the experience shall be presented along with an application in the form of written reports or file memoranda.
(5) The scope of real property appraisal practice for a certified residential real property appraiser shall be limited to residential real property or real estate having no more than four residential units, if any, without regard to transaction value or complexity. Subdivisions for which a development analysis or appraisal is necessary are not included in the scope of real property appraisal practice for a certified residential real property appraiser.
(1) To qualify for a credential as a certified general real property appraiser, an applicant shall:
(a) Be at least nineteen years of age;
(b) Hold a bachelor's degree, or higher, from an accredited degree-awarding college or university;
(c) Have his or her education evaluated for equivalency by one of the following if the college degree is from a foreign country:
(i) An accredited degree-awarding college or university;
(ii) A foreign degree credential evaluation service company that is a member of the National Association of Credential Evaluation Services; or
(iii) A foreign degree credential evaluation service company that provides equivalency evaluation reports accepted by an accredited degree-awarding college or university;
(d)(i) Have successfully completed and passed examination for no fewer than three hundred class hours in Real Property Appraiser Board-approved qualifying education courses conducted by education providers as prescribed by rules and regulations of the Real Property Appraiser Board. Each course shall include a proctored, closed-book examination pertinent to the material presented; or
(ii) Hold a degree in real estate from an accredited degree-awarding college or university that has had all or part of its curriculum approved by the Appraiser Qualifications Board as required core curriculum or the equivalent as determined by the Appraiser Qualifications Board. If the degree in real estate or equivalent as approved by the Appraiser Qualifications Board does not satisfy all required qualifying education for credentialing, the remaining class hours shall be completed in Real Property Appraiser Board-approved qualifying education pursuant to subdivision (d)(i) of this subsection;
(e)(i) Have no fewer than three thousand hours of experience, of which one thousand five hundred hours shall be in nonresidential appraisal work, as prescribed by rules and regulations of the Real Property Appraiser Board. The required experience shall be acceptable to the Real Property Appraiser Board and subject to review and determination as to conformity with the Uniform Standards of Professional Appraisal Practice. The experience shall have occurred during a period of no fewer than eighteen months; or
(ii) Successfully complete a PAREA program. If the PAREA program does not satisfy all required experience for credentialing, the remaining experience hours shall be completed pursuant to subdivision (e)(i) of this subsection;
(f) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the Real Property Appraiser Board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the Real Property Appraiser Board; and
(g) Within the twenty-four months following approval of the applicant's education and experience by the Real Property Appraiser Board, pass a certified general real property appraiser examination, approved by the Appraiser Qualifications Board, prescribed by rules and regulations of the Real Property Appraiser Board, and administered by a contracted testing service. Successful completion of examination shall be valid for twenty-four months.
(2) A certified general real property appraiser shall satisfy the requirements for the trainee real property appraiser credential, licensed residential real property appraiser credential, and certified residential real property appraiser credential for a downgraded credential. If requested, evidence acceptable to the Real Property Appraiser Board concerning the experience shall be presented along with an application in the form of written reports or file memoranda.
(3) The scope of real property appraisal practice for the certified general real property appraiser shall include all types of real property or real estate that the real property appraiser is competent to engage in.
(1) A person currently credentialed to engage in real property appraisal practice concerning real estate and real property under the laws of another jurisdiction may qualify for a credential through reciprocity as a licensed residential real property appraiser, a certified residential real property appraiser, or a certified general real property appraiser by complying with all of the provisions of the Real Property Appraiser Act relating to the appropriate classification of credentialing.
(2) An applicant under this section may qualify for a credential if, in the determination of the board:
(a) The requirements for credentialing in the applicant's jurisdiction of practice specified in an application for credentialing meet or exceed the minimum requirements of the Real Property Appraiser Qualification Criteria as adopted and promulgated by the Appraiser Qualifications Board of The Appraisal Foundation; and
(b) The regulatory program of the applicant's jurisdiction of practice specified in an application for credentialing is determined to be effective in accordance with Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
(3) The status of an applicant's jurisdiction of practice specified in an application for credentialing through reciprocity shall be verified through the most recent Compliance Review Report issued by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council. In the case that findings pertaining to the adoption or implementation of the Real Property Appraiser Qualification Criteria indicate that one or more credentialing requirements do not meet or exceed the Real Property Appraiser Qualification Criteria as promulgated by the Appraiser Qualifications Board of The Appraisal Foundation, the board may request evidence from the jurisdiction of practice or the Appraisal Subcommittee of the Federal Financial Institutions Examination Council showing that progress has been made to mitigate the findings in the Compliance Review Report.
(4) To qualify for a credential through reciprocity, the applicant shall:
(a) Submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation. A fingerprint-based national criminal history record check shall be conducted through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the board;
(b) Submit an irrevocable consent that service of process upon him or her may be made by delivery of the process to the director of the board if the plaintiff cannot, in the exercise of due diligence, effect personal service upon the applicant in an action against the applicant in a court of this state arising out of the applicant's activities as a real property appraiser in this state; and
(c) Comply with such other terms and conditions as may be determined by the board.
(5) The credential status of an applicant under this section, including current standing and any disciplinary action imposed against his or her credentials, shall be verified through the Appraiser Registry of the Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
(1) A nonresident currently credentialed to engage in real property appraisal practice concerning real estate and real property under the laws of another jurisdiction may obtain a temporary credential as a licensed residential real property appraiser, a certified residential real property appraiser, or a certified general real property appraiser to engage in real property appraisal practice in this state.
(2) To qualify for the issuance of a temporary credential, an applicant shall:
(a) Submit an application on a form approved by the board;
(b) Submit a letter of engagement or a contract indicating the location of the real property appraisal practice assignment;
(c) Submit an irrevocable consent that service of process upon him or her may be made by delivery of the process to the director of the board if the plaintiff cannot, in the exercise of due diligence, effect personal service upon the applicant in an action against the applicant in a court of this state arising out of the applicant's activities in this state; and
(d) Pay the appropriate application fee in an amount established by the board pursuant to section 76-2241.
(3) The credential status of an applicant under this section, including current standing and any disciplinary action imposed against his or her credentials, shall be verified through the Appraiser Registry of the Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
(4) Application for a temporary credential is valid for one year from the date application is made to the board or upon the expiration of the assignment specified in the letter of engagement, whichever occurs first.
(5) A temporary credential issued under this section shall be expressly limited to a grant of authority to engage in real property appraisal practice required for an assignment in this state. Each temporary credential shall expire upon the completion of the assignment or upon the expiration of a period of six months from the date of issuance, whichever occurs first. A temporary credential may be renewed for one additional six-month period.
(6) Any person issued a temporary credential to engage in real property appraisal practice in this state shall comply with all of the provisions of the Real Property Appraiser Act relating to the appropriate classification of credentialing. The board may, upon its own motion, and shall, upon the written complaint of any aggrieved person, cause an investigation to be made with respect to an alleged violation of the act by a person who is engaged in, or who has engaged in, real property appraisal practice as a temporary credential holder, and that person shall be deemed a real property appraiser within the meaning of the act.
(1) A credential issued under the Real Property Appraiser Act other than a temporary credential shall remain in effect until December 31 of the designated year unless surrendered, revoked, suspended, or canceled prior to such date. To renew a valid credential, the credential holder shall file an application on a form approved by the board and pay the appropriate renewal fee in an amount established by the board pursuant to section 76-2241. A credential may be renewed for one year or two years. In every second year of the two-year continuing education period, as specified in section 76-2236, evidence of completion of continuing education requirements shall accompany renewal application or be on file with the board prior to renewal.
(2) If a credential holder fails to apply and meet the requirements for renewal by November 30 of the designated year, such credential holder may obtain a renewal of such credential by satisfying all of the requirements for renewal and paying the appropriate late processing fee in an amount established by the board pursuant to section 76-2241 if such late renewal takes place prior to July 1 of the following year. If a credential holder that first obtained his or her credential at the current level on or after November 1 fails to apply and meet the requirements for renewal by December 31 of the designated year, such credential holder may obtain a renewal of such credential by satisfying all the requirements for renewal and paying a late processing fee if such late renewal takes place prior to July 1 of the following year. The board may refuse to renew any credential if the credential holder has continued to, directly or indirectly for another, offer, attempt, agree to engage in, or engage in real property appraisal practice in this state following the expiration of his or her credential. If a credential is not renewed prior to July 1, a credential holder shall reapply for credentialing and meet the current requirements in place at the time of application, except as provided in section 76-2233.03.
(1) A credential holder may request that his or her credential be placed on inactive status for a period not to exceed two years. Such requests shall be submitted to the board on an application form prescribed by the board. The payment of the appropriate fee in an amount established by the board pursuant to section 76-2241 shall accompany all applications for requests of inactive status.
(2) A credential holder whose credential is placed on inactive status shall not:
(a) Assume or use any title, designation, or abbreviation likely to create the impression that such person holds an active credential issued by the board; or
(b) Engage in real property appraisal practice or act as a credentialed real property appraiser.
(3) A credential holder whose credential is placed on inactive status may make a request to the board that such credential be reinstated to active status on an application form prescribed by the board. The payment of the appropriate fee in an amount established by the board pursuant to section 76-2241 shall accompany all applications for reinstatement of a credential.
(4) A credential holder's application for reinstatement shall include evidence that he or she has met the continuing education requirements as specified in section 76-2236 while the credential was on inactive status.
(5) If a credential holder's credential expires during the inactive period, an application for renewal of the credential shall accompany the application for reinstatement. All requirements for renewal specified in section 76-2233.02 shall be met, except for the requirement to pay a late processing fee for applications received after November 30 of the designated year.
(6) If a credential holder fails to reinstate his or her credential to active status prior to the completion of the two-year period, his or her credential will return to the status as if the credential was not placed on inactive status. If a credential holder's credential is expired at the completion of the two-year period, the credential holder shall reapply for credentialing and meet the current requirements in place at the time of application.
(1) Every credential holder shall furnish evidence to the board that he or she has satisfactorily completed no fewer than twenty-eight hours of approved continuing education activities in each two-year continuing education period. Hours of satisfactorily completed approved continuing education activities cannot be carried over from one two-year continuing education period to another. Evidence of successful completion of such continuing education activities for the two-year continuing education period, including passing examination if applicable, shall be submitted to the board in the manner prescribed by the board. No continuing education activity shall be less than two hours in duration. A person who holds a temporary credential does not have to meet any continuing education requirements in the Real Property Appraiser Act.
(2) As prescribed by rules and regulations of the Real Property Appraiser Board and at least once every two years, the seven-hour National Uniform Standards of Professional Appraisal Practice Continuing Education Course as approved by the Appraiser Qualifications Board or the equivalent of the course as approved by the Real Property Appraiser Board, shall be included in the continuing education requirement of each credential holder. An instructor certified by the Appraiser Qualifications Board satisfies this requirement by successfully completing an instructor recertification course and examination, if applicable, as approved by the Appraiser Qualifications Board.
(3) A continuing education activity conducted in another jurisdiction in which the activity is approved to meet the continuing education requirements for renewal of a credential in such other jurisdiction shall be accepted by the board if that jurisdiction has adopted and enforces standards for such continuing education activity that meet or exceed the standards established by the Real Property Appraiser Act and the rules and regulations of the board.
(4) The board may adopt a program of continuing education for individual credentials as long as the program is compliant with the Appraiser Qualifications Board's criteria specific to continuing education.
(5) No more than fourteen hours may be approved by the Real Property Appraiser Board as continuing education in each two-year continuing education period for participation, other than as a student, in appraisal educational processes and programs, which includes teaching, program development, authorship of textbooks, or similar activities that are determined by the board to be equivalent to obtaining continuing education. Evidence of participation shall be submitted to the board upon completion of the appraisal educational process or program. No preapproval will be granted for participation in appraisal educational processes or programs.
(6) As prescribed by rules and regulations of the Real Property Appraiser Board, qualifying education, as approved by the board, successfully completed by a credential holder shall be approved by the board as continuing education.
(7) Beginning January 1, 2026, as prescribed by rules and regulations of the Real Property Appraiser Board and at least once every two years, a successfully completed board-approved valuation bias and fair housing laws course shall be included in the continuing education requirement of each credential holder.
(8) A board-approved supervisory real property appraiser and trainee course successfully completed by a certified real property appraiser shall be approved by the board as continuing education no more than once during each two-year continuing education period.
(9) The Real Property Appraiser Board shall approve continuing education activities and instructors which it determines would protect the public by improving the competency of credential holders.
(1)(a) No person other than a licensed residential real property appraiser shall assume or use the title licensed residential real property appraiser or any title, designation, or abbreviation likely to create the impression of credentialing as a licensed residential real property appraiser by this state.
(b) No person other than a certified residential real property appraiser shall assume or use the title certified residential real property appraiser or any title, designation, or abbreviation likely to create the impression of credentialing as a certified residential real property appraiser by this state.
(c) No person other than a certified general real property appraiser shall assume or use the title certified general real property appraiser or any title, designation, or abbreviation likely to create the impression of credentialing as a certified general real property appraiser by this state.
(d) No person other than a trainee real property appraiser shall assume or use the title trainee real property appraiser or any title, designation, or abbreviation likely to create the impression of credentialing as a trainee real property appraiser by this state.
(2) A real property appraiser shall state whether he or she is a licensed residential real property appraiser, certified residential real property appraiser, certified general real property appraiser, or trainee real property appraiser and include his or her board-issued credential number whenever he or she identifies himself or herself as a real property appraiser, including on all reports which are signed individually or as cosigner.
(3) The terms licensed residential real property appraiser, certified residential real property appraiser, certified general real property appraiser, and trainee real property appraiser may only be used to refer to a person who is credentialed as such under the Real Property Appraiser Act and may not be used following or immediately in connection with the name or signature of a corporation, partnership, limited partnership, limited liability company, firm, or group or in such manner that it might be interpreted as referring to a corporation, partnership, limited partnership, limited liability company, firm, or group or to anyone other than the credential holder. This subsection shall not be construed to prevent a credential holder from signing a report on behalf of a corporation, partnership, limited partnership, limited liability company, firm, or group if it is clear that only the person holds the credential and that the corporation, partnership, limited partnership, limited liability company, firm, or group does not.
Each credential holder shall comply with the Uniform Standards of Professional Appraisal Practice. The board may adopt and promulgate rules and regulations to assist in the enforcement of the Uniform Standards of Professional Appraisal Practice.
The following acts and omissions shall be considered grounds for disciplinary action or denial of an application by the board:
(1) Failure to meet the minimum qualifications for credentialing established by or pursuant to the Real Property Appraiser Act;
(2) Procuring or attempting to procure a credential under the act by knowingly making a false statement, submitting false information, or making a material misrepresentation in an application filed with the board or procuring or attempting to procure a credential through fraud or misrepresentation;
(3) Paying money or other valuable consideration other than the fees provided for by the act to any member or employee of the board to procure a credential;
(4) An act or omission involving real estate or real property appraisal practice which constitutes dishonesty, fraud, or misrepresentation with or without the intent to substantially benefit the credential holder or another person or with the intent to substantially injure another person;
(5) Failure to demonstrate character and general fitness such as to command the confidence and trust of the public;
(6) Conviction, including a conviction based upon a plea of guilty or nolo contendere, of any felony unless his or her civil rights have been restored;
(7) Entry of a final civil or criminal judgment, including dismissal with settlement, on grounds of fraud, dishonesty, breach of trust, money laundering, misrepresentation, or deceit involving real estate, financial services, or real property appraisal practice;
(8) Conviction, including a conviction based upon a plea of guilty or nolo contendere, of a crime which is related to the qualifications, functions, or duties of a real property appraiser;
(9) Performing valuation services as a credentialed real property appraiser under an assumed or fictitious name;
(10) Paying a finder's fee or a referral fee to any person in connection with a real property appraisal practice assignment, except that an intracompany payment for business development shall not be considered to be unethical or a violation of this subdivision;
(11) Making a false or misleading statement in that portion of a written report that deals with professional qualifications or in any testimony concerning professional qualifications;
(12) Any violation of the act or any rules and regulations adopted and promulgated pursuant to the act;
(13) Failure to maintain, or to make available for inspection and copying, records required by the board;
(14) Demonstrating negligence, incompetence, or unworthiness to act as a real property appraiser, whether of the same or of a different character as otherwise specified in this section;
(15) Suspension or revocation of an appraisal credential or a license in another regulated occupation, trade, or profession in this or any other jurisdiction or disciplinary action taken by another jurisdiction that limits the real property appraiser's ability to engage in real property appraisal practice;
(16) Failure to renew or surrendering an appraisal credential or any other registration, license, or certification issued by any other regulatory agency or held in any other jurisdiction in lieu of disciplinary action pending or threatened;
(17) Failure to report disciplinary action taken against an appraisal credential or any other registration, license, or certification issued by any other regulatory agency or held in any other jurisdiction within sixty days of receiving notice of such disciplinary action;
(18) Failure to comply with terms of a consent agreement or settlement agreement;
(19) Failure to submit or produce books, records, documents, workfiles, reports, or other materials requested by the board concerning any matter under investigation;
(20) Failure of an education provider to produce records, documents, reports, or other materials, including, but not limited to, required student attendance reports, to the board;
(21) Knowingly offering or attempting to offer a qualifying or continuing education course or activity as being approved by the board to a real property appraiser or an applicant, without first obtaining approval of the activity from the board, except for courses required by an accredited degree-awarding college or university for completion of a degree in real estate, if the college or university had its curriculum approved by the Appraiser Qualifications Board as qualifying education;
(22) Presentation to the Real Property Appraiser Board of any check which is returned to the State Treasurer unpaid, whether payment of fee is for an initial or renewal credential or for examination; and
(23) Failure to pass the examination.
(1) The board may, upon its own motion, and shall, upon the written complaint of any aggrieved person, cause an investigation to be made with respect to an alleged violation of the Real Property Appraiser Act. The board may revoke or suspend the credential or otherwise discipline a credential holder, revoke or suspend a qualifying or continuing education course or activity, deny any application, or issue a cease and desist order for any violation of the Real Property Appraiser Act. Any disciplinary action taken against a credentialed real property appraiser, including any action that limits a credentialed real property appraiser's ability to engage in real property appraisal practice, shall be reported to federal authorities as required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. Upon receipt of information indicating that a person may have violated any provision of the Real Property Appraiser Act, the board shall make an investigation of the facts to determine whether or not there is evidence of a violation. If technical assistance is required, the board may contract with or use qualified persons.
(2)(a) If an investigation indicates that a person may have violated a provision of the act, the board may offer the person an opportunity to voluntarily and informally discuss the alleged violation before the board. The board may enter into consent agreements or negotiate settlements.
(b) If an investigation indicates that a person not holding a credential under the act has violated a provision of the act, the board may issue a cease and desist order or refer the investigation to the appropriate county attorney for the consideration of formal charges.
(c) If an investigation indicates that a credential holder has violated a provision of the act, a formal complaint shall be prepared by the board and served upon the credential holder. The complaint shall require the credential holder to file an answer within thirty days of the date of service. In responding to a complaint, the credential holder may admit the allegations of the complaint, deny the allegations of the complaint, or plead otherwise. Failure to make a timely response shall be deemed an admission of the allegations of the complaint. Upon receipt of an answer to the complaint, the director or chairperson of the board shall set a date, time, and place for an administrative hearing on the complaint. The date of the hearing shall not be less than thirty nor more than one hundred twenty days from the date that the answer is filed unless such date is extended for good cause.
(1) The administrative hearing on the allegations in the complaint filed pursuant to section 76-2239 shall be heard by a hearing officer at the time and place prescribed by the board and in accordance with the Administrative Procedure Act. If, at the conclusion of the hearing, the hearing officer determines that the credential holder is guilty of the violation, the board shall take such disciplinary action as the board deems appropriate. Disciplinary actions which may be taken shall include, but not be limited to, revocation, suspension, probation, admonishment, letter of reprimand, and formal censure, with publication, of the credential holder and may or may not include an education requirement. Costs incurred for an administrative hearing, including fees of counsel, the hearing officer, court reporters, investigators, and witnesses, shall be taxed as costs in such action as the board may direct.
(2) The decision and order of the board shall be final. Any decision or order of the board may be appealed. The appeal shall be on questions of law only and otherwise shall be in accordance with the Administrative Procedure Act.
(1) The board shall charge and collect appropriate fees for its services under the Real Property Appraiser Act as follows:
(a) A credential application fee of no more than two hundred dollars;
(b) An examination fee of no more than three hundred dollars. The board may direct applicants to pay the fee directly to a third party who has contracted to administer the examination;
(c) An initial and renewal credentialing fee, other than temporary credentialing, of no more than three hundred fifty dollars;
(d) A late processing fee of no more than twenty-five dollars for each month or portion of a month the fee is late;
(e) A temporary credential application fee for a licensed residential real property appraiser, a certified residential real property appraiser, or a certified general real property appraiser of no more than one hundred fifty dollars;
(f) A temporary credentialing fee of no more than one hundred dollars for a licensed residential real property appraiser, certified residential real property appraiser, or certified general real property appraiser holding a temporary credential under the act;
(g) An inactive credential application fee of no more than one hundred dollars;
(h) An inactive credentialing fee of no more than three hundred dollars;
(i) A duplicate proof of credentialing fee of no more than twenty-five dollars;
(j) A certificate of good standing fee of no more than ten dollars; and
(k) A criminal history record check fee of no more than one hundred dollars.
(2) All fees for credentialing through reciprocity shall be the same as those paid by others pursuant to this section.
(3) In addition to the fees set forth in this section, the board may collect and transmit to the appropriate federal authority any fees established under the provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. The board may establish such fees as it deems appropriate for special examinations and other services provided by the board.
(4) All fees and other revenue collected pursuant to the Real Property Appraiser Act shall be remitted by the board to the State Treasurer for credit to the Real Property Appraiser Fund.
(1) The board shall provide to each credential holder proof that such person has been credentialed under the Real Property Appraiser Act for the classification requirements set forth in the act. The board may also issue a credentialing card in such size and form as it may approve.
(2) The board may, upon payment of the appropriate fee in an amount established by the board pursuant to section 76-2241, issue duplicate proof that such person has been credentialed under the act.
Nothing contained in the Real Property Appraiser Act shall be deemed to prohibit any credential holder under the act from engaging in real property appraisal practice as a professional corporation in accordance with the Nebraska Professional Corporation Act.
Each credential holder shall designate in the manner prescribed by the board a principal place of business. Upon any change of his or her principal place of business, a credential holder shall promptly give notice thereof in writing to the board and the board shall issue a new proof of credentialing for the unexpired term.
No person engaged in real property appraisal practice in this state or acting in the capacity of a real property appraiser in this state may bring or maintain any action in any court of this state to collect compensation for the performance of valuation services for which credentialing is required by the Real Property Appraiser Act without alleging and proving that he or she was duly credentialed under the act in this state at all times during the performance of such services.
Any person required to be credentialed by the Real Property Appraiser Act who, directly or indirectly for another, offers, attempts, agrees to engage in, or engages in real property appraisal practice or who advertises or holds himself or herself out to the general public as a real property appraiser in this state without obtaining proper credentialing under the act shall be guilty of a Class III misdemeanor and shall be ineligible to apply for credentialing under the act for a period of one year from the date of his or her conviction of such offense. The board may, in its discretion, credential such person within such one-year period upon application and after an administrative hearing.
(1) A person may retain or employ a real property appraiser credentialed under the Real Property Appraiser Act to perform valuation services. In each case, the valuation services specific to real property appraisal practice, including any report, shall comply with the Real Property Appraiser Act and the Uniform Standards of Professional Appraisal Practice.
(2) In a valuation assignment, the real property appraiser shall remain an impartial, disinterested third party. When providing an evaluation assignment, the real property appraiser may respond to a client's stated objective but shall also remain an impartial, disinterested third party.
At the request of the board, the Attorney General shall render to the board an opinion with respect to all questions of law arising in connection with the administration of the Real Property Appraiser Act and shall act as attorney for the board in all actions and proceedings brought by or against the board under or pursuant to the act. All fees and expenses of the Attorney General arising out of such duties shall be paid out of the Real Property Appraiser Fund. The Attorney General may appoint special counsel to prosecute such action, and all fees and expenses of such counsel allowed shall be taxed as costs in the action as the court may direct.
Whenever, in the judgment of the board, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of the Real Property Appraiser Act, the Attorney General may maintain an action in the name of the State of Nebraska, in the district court of the county in which such violation or threatened violation occurred, to abate and temporarily and permanently enjoin such acts and practices and to enforce compliance with the act. The plaintiff shall not be required to give any bond nor shall any court costs be adjudged against the plaintiff.
(1) The board may prepare a directory showing the name, place of business, and effective and expiration dates for credentials of credential holders under the Real Property Appraiser Act which may be made available on the board's website. Printed copies of the directory shall be made available to the public at such reasonable price per copy as may be fixed by the board. The directory shall be provided to federal authorities as required by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
(2) The board shall provide without charge to any credential holder under the Real Property Appraiser Act a set of rules and regulations adopted and promulgated by the board and any other information which the board deems important in the area of real property appraisal in this state. The information may be made available electronically or printed in a booklet, a pamphlet, or any other form the board determines appropriate. The board may update such material as often as it deems necessary. The board may provide such material to any other person upon request and may charge a fee for the material. The fee shall be reasonable and shall not exceed any reasonable or necessary costs of producing the material for distribution.
The board may, upon payment of the appropriate fee in an amount established by the board pursuant to section 76-2241, issue a certificate of good standing to any credential holder under the Real Property Appraiser Act who is in good standing in this state.
Sections 76-2301 to 76-2334 shall be known and may be cited as the One-Call Notification System Act.
(1) It is the intent of the Legislature to establish a means by which excavators may notify operators of underground facilities in an excavation area so that operators have the opportunity to identify and locate the underground facilities prior to excavation and so that the excavators may then observe proper precautions to safeguard the underground facilities from damage.
(2) It is the purpose of the One-Call Notification System Act to aid the public by preventing injury to persons and damage to property and the interruption of utility services resulting from accidents caused by damage to underground facilities.
For purposes of the One-Call Notification System Act, the definitions found in sections 76-2303.01 to 76-2317 shall be used.
Bar test survey means a leakage survey completed with a nonconductive piece of equipment made by manually driving small holes in the ground at regular intervals along the route of an underground gas pipe for the purpose of extracting a sample of the ground atmosphere and testing the atmosphere in the holes with a combustible gas detector or other suitable device.
Business day shall mean any day other than a Saturday, Sunday, or state or nationally observed legal holiday.
Center means a call center which shall have as its principal purpose the statewide receipt and dissemination to participating operators of information on a fair and uniform basis concerning intended excavations by excavators in areas where operators have underground facilities.
Committee means the Underground Excavation Safety Committee.
Damage shall mean any impact with, partial or complete severance, destruction, impairment, or penetration of, or removal or weakening of support from an underground facility, including its protective coating, housing, or other protective device.
Emergency condition shall mean any condition which constitutes a clear and present danger to life, health, or property or which demands immediate action to prevent or repair a major service outage.
Excavation shall mean any activity in which earth, rock, or other material in or on the ground is moved or otherwise displaced by means of tools, equipment, or explosives and shall include grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, and cable or pipe plowing or driving but shall not include (1) normal maintenance of roads if the maintenance does not change the original road grade and does not involve the road ditch, (2) tilling of soil and gardening for seeding and other agricultural purposes, (3) digging of graves or in landfills in planned locations, (4) maintenance or rebuilding of railroad track or facilities located on a railroad right-of-way by the railroad company or its contractors when such maintenance or rebuilding does not change the track grade, or (5) hand digging around the base of a pole for pole inspection as part of routine maintenance or replacement of a pole when the replacement pole is similarly sized and is installed in the existing hole.
Excavator shall mean a person who engages in excavation in this state.
Gas or hazardous liquid underground pipeline facility shall mean any underground facility used or intended for use in the transportation of gas or the treatment of gas or used or intended for use in the transportation of hazardous liquids including petroleum or petroleum products.
Locator means a person who identifies and marks underground facilities for an operator, including a contractor who performs such location services for an operator.
Nonpermanent surface shall mean any ground consisting of uncovered dirt or rock or ground that is covered by grass or other plant life, crushed rock, gravel, or other similar natural substance.
Normal working hours shall mean the hours of 7 a.m. to 5 p.m. on a business day in each time zone in the state.
Operator shall mean a person who manages or controls the functions of an underground facility but shall not include a person who is an owner or tenant of real property where underground facilities are located if the underground facilities are used exclusively to furnish services or commodities on the real property.
Permanent surface shall mean any ground that is covered by a hard, artificial, weatherproof material such as concrete, asphalt, or other similar artificial substance.
Person means an individual, partnership, limited liability company, association, municipality, state, county, political subdivision, utility, joint venture, or corporation and shall include the employer, employee, or contractor of an individual.
Ticket means the compilation of data received by the center in the notice of excavation and the facility locations provided to the center and which is assigned a unique identifying number.
Underground facility shall mean any item of personal property buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic communications, telephonic communications, telegraphic communications, cable television, electric energy, oil, gas, hazardous liquids, or other substances, including pipes, trunk lines, fiber optic cables, sewers, conduits, cables, valves, lines, wires, manholes, and attachments to such personal property.
Operators of underground facilities shall become members of and participate in the center.
(1) The center shall be governed by a board of directors who shall oversee operation of the center pursuant to rules and regulations adopted and promulgated by the State Fire Marshal to carry out the One-Call Notification System Act. The board of directors shall have the authority to propose rules and regulations which may be adopted and promulgated pursuant to this section and have such other authority as provided by rules and regulations adopted and promulgated by the State Fire Marshal that are not inconsistent with the One-Call Notification System Act.
(2) The board of directors shall also establish a competitive bidding procedure to select a vendor to provide the notification service, establish a procedure by which members of the center share the costs of the center on a fair, reasonable, and nondiscriminatory basis, and do all other things necessary to implement the purpose of the center. Any agreement between the center and a vendor for the notification service may be modified from time to time by the board of directors, and any agreement shall be reviewed by the board of directors at least once every three years, with an opportunity to receive new bids if desired by the board of directors.
(3) The rules and regulations adopted and promulgated by the State Fire Marshal to carry out subsection (2) of this section may provide for:
(a) Any requirements necessary to comply with United States Department of Transportation programs;
(b) The qualifications, appointment, retention, and composition of the board of directors; and
(c) Best practices for the marking, location, and notification of proposed excavations which shall govern the center, excavators, and operators of underground facilities.
(4) Any rule or regulation adopted and promulgated by the State Fire Marshal pursuant to subdivision (3)(c) of this section shall originate with the board of directors.
The board of directors shall assess the effectiveness of enforcement programs, enforcement actions, and its damage prevention and public awareness programs and make a report to the Governor and the Legislature no later than December 1, 2021, and by December 1 every odd-numbered year thereafter. The report to the Legislature shall be made electronically.
Every operator shall furnish the vendor selected by the board of directors with information concerning the location of its underground facilities. Every operator having underground facilities in existence in this state on February 16, 1994, shall furnish such information to the vendor by April 3, 1995. The vendor shall have the center operational on October 2, 1995.
Any locator acting as a contractor for an operator to perform location services shall be trained in locator standards and practices applicable to the industry. The board of directors may review locator training materials provided by operators, locators, and excavators and may make recommendations regarding best practices for locators, if deemed appropriate.
Notwithstanding any other provision of the One-Call Notification System Act, any plastic or nonmetallic underground facilities installed underground on or after January 1, 2021, shall be installed in such a manner as to be locatable, either by mapping or by use of tracer wire, by the operator for purposes of the act.
(1) A person shall not commence any excavation without first giving notice to every operator. An excavator's notice to the center shall be deemed notice to all operators. An excavator's notice to operators shall be ineffective for purposes of this subsection unless given to the center. Notice to the center shall be given at least two full business days, but no more than ten business days, before commencing the excavation, except notice may be given more than ten business days in advance when the excavation is a road construction, widening, repair, or grading project provided for in sections 70-311 to 70-313 and 86-708 to 86-710. An excavator may commence work before the elapse of two full business days when (a) notice to the center has been given as provided by this subsection and (b) all the affected operators have notified the excavator that the location of all the affected operator's underground facilities have been marked or that the operators have no underground facilities in the location of the proposed excavation.
(2) The notice required pursuant to subsection (1) of this section shall include (a) the name and telephone number of the person making the notification, (b) the name, address, and telephone number of the excavator, (c) the location of the area of the proposed excavation, including the range, township, section, and quarter section, unless the area is within the corporate limits of a city or village, in which case the location may be by street address, (d) the date and time excavation is scheduled to commence, (e) the depth of excavation, (f) the type and extent of excavation being planned, including whether the excavation involves tunneling or horizontal boring, and (g) whether the use of explosives is anticipated.
An excavator shall serve notice of intent to excavate upon the center by submitting a locate request using a method provided by the center. The center shall inform the excavator of all operators to whom such notice will be transmitted and shall promptly transmit such notice to every operator having an underground facility in the area of intended excavation. The notice shall be transmitted to operators and excavators as a ticket. The center shall assign an identification number to each notice received, which number shall be evidenced on the ticket.
(1) Upon receipt of the information contained in the notice pursuant to section 76-2321, an operator shall advise the excavator of the approximate location of underground facilities in the area of the proposed excavation by marking or identifying the location of the underground facilities with stakes, flags, paint, or any other clearly identifiable marking or reference point and shall indicate if the underground facilities are subject to section 76-2331. The location of the underground facility given by the operator shall be within a strip of land eighteen inches on either side of the marking or identification plus one-half of the width of the underground facility. If in the opinion of the operator the precise location of a facility cannot be determined and marked as required, the operator shall provide all pertinent information and field locating assistance to the excavator at a mutually agreed to time. The location shall be marked or identified using color standards prescribed by the center. The operator shall respond no later than two business days after receipt of the information in the notice or at a time mutually agreed to by the parties.
(2) The marking or identification shall be done in a manner that will last for a minimum of five business days on any nonpermanent surface and a minimum of ten business days on any permanent surface. If the excavation will continue for longer than five business days, the operator shall remark or reidentify the location of the underground facility upon the request of the excavator. The request for remarking or reidentification shall be made through the center.
(3)(a) Beginning September 1, 2024, it shall be a violation of the One-Call Notification System Act for an excavator to (i) serve notice of intent to excavate upon the center for an area in which the excavation cannot be reasonably commenced within seventeen calendar days after the excavation start date indicated pursuant to section 76-2321 or (ii) request remarking or reidentification for any area in which the excavation cannot be reasonably commenced or continued within fourteen calendar days after the date remarking or reidentification is completed.
(b) After receiving notice of any alleged violation of this subsection pursuant to subsection (2) of section 76-2325, the excavator shall in its answer describe the circumstances which prevented the commencement or continuation of excavation within the timeframes set forth in this subsection.
(4) An operator who determines that such operator does not have any underground facility located in the area of the proposed excavation shall notify the center of the determination prior to the date of commencement of the excavation, or prior to two full business days after transmittal of the ticket, whichever occurs sooner. All ticket responses made under this subsection shall be transmitted to the operator and excavator by the center.
An excavator who fails to give notice of an excavation pursuant to section 76-2321 or who fails to comply with section 76-2331 and who damages an underground facility by such excavation shall be strictly liable to the operator of the underground facility for the cost of all repairs to the underground facility. An excavator who gives the notice and who damages an underground facility shall be liable to the operator for the cost of all repairs to the underground facility unless the damage to the underground facility was due to the operator's failure to comply with section 76-2323. An excavator who fails to give notice of an excavation pursuant to section 76-2321 and who damages an underground facility that is operated by the excavator shall not be in violation of the One-Call Notification System Act.
In addition to any liability provided in this section an operator of a damaged underground facility shall be entitled to any other remedies available at law or in equity provided by statute or otherwise.
(1) Until September 1, 2024:
(a) Any person who violates section 76-2320, 76-2320.01, 76-2320.02, 76-2321, 76-2322, 76-2323, 76-2326, 76-2330, or 76-2331 shall be subject to a civil penalty as follows:
(i) For a violation by an excavator or an operator related to a gas or hazardous liquid underground pipeline facility or a fiber optic telecommunications facility, an amount not to exceed ten thousand dollars for each violation for each day the violation persists, up to a maximum of five hundred thousand dollars; and
(ii) For a violation by an excavator or an operator related to any other underground facility, an amount not to exceed five thousand dollars for each day the violation persists, up to a maximum of fifty thousand dollars; and
(b) An action to recover a civil penalty shall be brought by the Attorney General or a prosecuting attorney on behalf of the State of Nebraska in any court of competent jurisdiction of this state. The trial shall be before the court, which shall consider the nature, circumstances, and gravity of the violation and, with respect to the person found to have committed the violation, the degree of culpability, the absence or existence of prior violations, whether the violation was a willful act, any good faith attempt to achieve compliance, and such other matters as justice may require in determining the amount of penalty imposed. All penalties shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.
(2) Beginning September 1, 2024:
(a)(i) When the State Fire Marshal has reason to believe that any person has committed any violation described in subdivision (b) of this subsection, the State Fire Marshal may conduct an investigation to determine the facts and circumstances of such alleged violation and, if conducted, shall give prior notice of such investigation by first-class mail or electronic mail to such person.
(ii) When any person other than the State Fire Marshal has reason to believe that any violation described in subdivision (b) of this subsection has occurred, such person may submit information to the State Fire Marshal regarding such violation on a form prescribed by the State Fire Marshal. Upon receipt of such information, the State Fire Marshal may conduct an investigation to determine the facts and circumstances of such alleged violation and, if conducted, shall give prior notice of such investigation by first-class mail or electronic mail to both the person being investigated and the person who submitted the information to the State Fire Marshal.
(iii) The State Fire Marshal shall refer the findings of the investigation to the committee for its determination. Except as otherwise provided in subdivision (2)(a)(iv) of this section, the committee shall issue a written determination stating findings of fact, conclusions of law, and the civil penalty, if any, to be assessed for such violation and serve a copy of the written determination by personal service or by certified mail, return receipt requested, upon such person. If the State Fire Marshal's investigation was commenced based on information provided pursuant to subdivision (2)(a)(ii) of this section, a copy of the written determination shall also be delivered by first-class mail to the person providing such information.
(iv) If the committee determines that the civil penalty to be assessed for any violation exceeds the amount described in subdivision (2)(b)(iv) of this section, the committee shall refer the matter, together with the State Fire Marshal's findings and the committee's written determination, to the Attorney General for prosecution pursuant to subdivision (2)(b)(v) of this section.
(v) Not later than thirty days after receipt of the committee's written determination, any party may submit a written request to the State Fire Marshal for a hearing on the matter. The committee shall then appoint a hearing officer to conduct such hearing and set a hearing date and provide written notice of hearing to the parties at least thirty days prior to the date of the hearing. Such notice shall contain the name, address, and telephone number of the hearing officer, a copy of the written determination upon which the hearing shall be held, and the date, time, and place of hearing. The notice of hearing may be served by personal service or by certified mail. If no hearing is requested in answer to the written determination by the person found to have committed any violation as described in subdivision (b) of this subsection, or if a request for a hearing is withdrawn, such person shall pay any civil penalty assessed within thirty days after receipt of the written determination or within thirty days after cancellation of the hearing, whichever is applicable.
(vi) In the preparation and conduct of the hearing, the hearing officer shall have the power, on the hearing officer's own motion or upon the request of any party, to compel the attendance of any witness and the production of any documents by subpoena to ensure a fair hearing. The hearing officer may administer oaths and examine witnesses and receive any evidence pertinent to the determination of the matter. Any witnesses so subpoenaed shall be entitled to the same fees as prescribed by law in judicial proceedings in the district court of this state in a civil action and mileage at the same rate provided in section 81-1176 for state employees.
(vii) A party may appear at the hearing with or without the assistance of counsel to present testimony, examine witnesses, and offer evidence. A stenographic record of all testimony and other evidence received at the hearing shall be made and preserved pending final disposition of the matter.
(viii) Unless all requests for hearing are withdrawn prior to the hearing, following the hearing the hearing officer shall prepare written findings of fact and conclusions of law, and based on such findings of fact and conclusions of law, the committee shall affirm, modify, or reverse the written determination issued under subdivision (2)(a)(iii) of this section and issue a final order. The committee's final order may include an assessment of costs incurred in conducting the hearing, including the costs of the hearing officer and compelling the attendance of witnesses, and assess such costs against the parties. Any party aggrieved by the final order of the committee may appeal the decision, and such appeal shall be in accordance with the Administrative Procedure Act; and
(b)(i) Except as provided in subdivision (2)(b)(ii) of this section, any person who violates section 76-2320, 76-2320.01, 76-2320.02, 76-2321, 76-2322, 76-2323, 76-2326, 76-2330, or 76-2331 or any rule or regulation adopted and promulgated by the State Fire Marshal pursuant to section 76-2319 shall be subject to a civil penalty as follows:
(A) For a violation by an excavator or an operator related to a gas or hazardous liquid underground pipeline facility or a fiber optic telecommunications facility, an amount not to exceed ten thousand dollars for each violation for each day the violation persists, up to a maximum of five hundred thousand dollars; and
(B) For a violation by an excavator or an operator related to any other underground facility, an amount not to exceed five thousand dollars for each day the violation persists, up to a maximum of fifty thousand dollars.
(ii) In addition to or in lieu of assessing a civil penalty as provided in subdivision (i) of this subsection, the committee may order that a violator take and complete continuing education regarding compliance with the One-Call Notification System Act. Such continuing education shall be approved by the State Fire Marshal.
(iii) When imposing a civil penalty, the committee shall consider the nature, circumstances, and gravity of the violation and, with respect to the person found to have committed the violation, the degree of culpability, the absence or existence of prior violations, whether the violation was a willful act, any good faith attempt to achieve compliance, and such other matters as justice may require.
(iv) The committee shall not assess a civil penalty that is more than ten thousand dollars per violation. The violator shall pay the costs of the investigation as billed by the State Fire Marshal. The State Fire Marshal shall remit such paid costs to the State Treasurer for credit to the fund from which the costs were expended.
(v) As provided in subdivision (2)(a)(iv) of this section, for any investigation in which a civil penalty in excess of the amount described in subdivision (2)(b)(iv) of this section is deemed justified by the committee, the committee shall refer such matter to the Attorney General or a prosecuting attorney who shall bring an action on behalf of the State of Nebraska to recover such penalty in any court of competent jurisdiction of this state. The trial shall be before the court, which shall consider the nature, circumstances, and gravity of the violation and, with respect to the person found to have committed the violation, the degree of culpability, the absence or existence of prior violations, whether the violation was a willful act, any good faith attempt to achieve compliance, and such other matters as justice may require in determining the amount of penalty imposed.
(vi) Costs incurred by the investigation conducted pursuant to subdivision (2)(a) of this section may be sought as part of any judgment against a violator. The State Fire Marshal shall remit any such recovered costs to the State Treasurer for credit to the fund from which the costs were expended.
(vii) All civil penalties collected pursuant to this subsection shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.
Any person who willfully and maliciously breaks, injures, destroys, or otherwise interferes with the poles, wires, or other facilities of any telecommunications or railroad company or electric light and power company in this state or who willfully and purposely interrupts or interferes with the transmission of telecommunications messages or the transmission of light, heat, and power in this state shall be subject to the action and penalty prescribed in section 28-519.
If any underground facility is damaged, dislocated, or disturbed before or during excavation, the excavator shall immediately notify the center. An excavator shall not conceal or attempt to conceal damage, dislocation, or disturbance of an underground facility and shall not repair or attempt to repair the underground facility unless authorized by the operator of the underground facility.
If in the course of excavation the excavator discovers that the operator has incorrectly located the underground facility, he or she shall notify the center as soon as practical but no later than seventy-two hours after discovery.
The One-Call Notification System Act shall not affect or impair any local ordinances or other provisions of law requiring permits to be obtained before an excavation. A permit issued by a governing body shall not relieve an excavator from complying with the requirements of the act. No claim shall be maintained under the One-Call Notification System Act against a political subdivision or its officers, agents, or employees except to the extent, and only to the extent, provided by the Political Subdivisions Tort Claims Act.
(1) Sections 76-2321 and 76-2323 shall not apply to an excavation made under an emergency condition if all reasonable precautions are taken to protect the underground facilities. If an emergency condition exists, the excavator shall give notification in substantial compliance with section 76-2321 as soon as practical. Upon being notified that an emergency condition exists, each operator shall provide all reasonably available location information to the excavator as soon as possible. If the emergency condition has arisen through no fault of the excavator, sections 76-2324 and 76-2325 shall not apply and the excavator shall be liable for damage to any underground facility located in the area if the damage occurs because of the negligent acts or omissions of the excavator.
(2) Sections 76-2321 and 76-2323 shall not apply to a bar test survey deemed necessary to address an emergency condition performed by the operator of the gas or hazardous liquid underground pipeline facility or a qualified excavator who has been engaged to work on behalf of the operator in response to a reported or suspected leak of natural gas, propane, or other combustible liquid or gas. If the emergency condition has arisen through no fault of the excavating operator, section 76-2325 shall not apply.
(3) Sections 76-2321 and 76-2323 shall not apply to an excavation deemed necessary to address an emergency condition performed by the operator of the gas or hazardous liquid underground pipeline facility or a qualified excavator who has been engaged to work on behalf of the operator to address a leak of natural gas, propane, or other combustible liquid or gas. In such event, the operator shall give notification in substantial compliance with section 76-2321 prior to the excavation undertaken by the operator to address the emergency condition. Upon being notified that an emergency condition exists, each operator shall provide all reasonably available location information to the excavating operator as soon as possible, but the excavating operator need not wait for such location information prior to excavation or continuing excavation. If the emergency condition has arisen through no fault of the excavating operator, section 76-2325 shall not apply.
The center shall:
(1) Maintain adequate records documenting compliance with the requirements of the One-Call Notification System Act, including records of all telephone calls and records of all locate requests for the preceding five years which will be made available and printed upon request of an operator or excavator;
(2) Provide the notification service during normal working hours at a minimum; and
(3) Provide procedures for emergency notification for calls received at other than normal working hours.
Unless otherwise agreed by the operator and excavator in writing, no excavation shall be performed within twenty-five feet of an underground natural gas transmission line as defined in 49 C.F.R. 192.3 unless a representative of the operator of the underground natural gas transmission line is present at the planned excavation area. If the representative of the operator fails to appear at the proposed excavation area at the time work is scheduled to commence, the excavator shall notify the operator that the representative failed to appear and excavation operations can begin if reasonable precautions are taken to protect the underground facility. This section does not prohibit an operator from either voluntarily having its representative present during excavation or from entering into an agreement voluntarily with an excavator that allows an operator representative to be present during excavation.
The State Fire Marshal may, by rule and regulation, define occurrences relating to damage of an underground facility that creates an emergency condition that requires an excavator to immediately notify an operator or a locator, if applicable, and the center regarding the location and extent of damage to an underground facility.
(1) Beginning September 1, 2024, the Underground Excavation Safety Committee is created. The committee shall consist of the following members: (a) The State Fire Marshal or the State Fire Marshal's designee, (b) three representatives of operators, (c) three representatives of excavators, and (d) one alternate representative of operators and one alternate representative of excavators. An alternate representative described in subdivision (d) of this subsection shall only participate in a committee meeting if a corresponding representative described in subdivision (b) or (c) of this subsection has declared a conflict of interest and recused himself or herself from participation in a matter before the committee or is otherwise unavailable for a committee meeting. In such instance, the chairperson shall notify the alternate representative to serve in the place of the recused or absent representative for any meeting related to such particular conflict or for the duration of such absence.
(2) The representative members shall be appointed by the Governor. The Governor shall appoint one of the three initial representatives of operators described in subdivision (1)(b) of this section, one of the three initial representatives of excavators described in subdivision (1)(c) of this section, and both alternate representatives described in subdivision (1)(d) of this section for two-year terms. The other initial representatives shall be appointed for four-year terms. All succeeding terms shall be for four years. A representative member may be reappointed at the end of such member's term. If there is a vacancy on the committee, the Governor shall appoint a member to serve the remainder of the unexpired term of the vacating member. All representative members shall be subject to approval by the Legislature.
(3) The committee shall select from among its members a chairperson. The committee shall not select an alternate representative to serve as chairperson. The committee shall govern its procedures pursuant to rules and regulations adopted and promulgated by the State Fire Marshal. No representative member shall receive any compensation for services rendered as a member of the committee but may be reimbursed for expenses as provided in sections 81-1174 to 81-1177.
(4) The committee shall meet not less than monthly and also at such other times and at such places as may be established by the chairperson. The committee may meet by videoconference with approval of a majority of the committee members. Any action taken by the committee shall require a majority vote of the members.
(5)(a) The committee shall (i) review investigations completed pursuant to subdivision (2)(a) of section 76-2325, (ii) determine based on such review whether any person has committed any violation described in subdivision (2)(b) of section 76-2325, and (iii) determine the appropriate civil penalty, if any, to be assessed for such violation consistent with subdivision (2)(b)(ii) of section 76-2325.
(b) No member of the committee who participated in an investigation conducted under subdivision (2)(a) of section 76-2325 shall participate in a hearing upon any question in which such member or any business with which such member is associated is a party.
The State Fire Marshal shall adopt and promulgate rules and regulations to carry out section 76-2333 and subsection (2) of section 76-2325, including general rules of practice and procedure relating to the committee, training requirements for investigators, and rules governing the investigation process.
The Legislature finds, determines, and declares that (1) the application of the common law of agency to the relationships between real estate brokers or salespersons and persons who are sellers, landlords, buyers, or tenants of rights and interests in real property has resulted in misunderstandings and consequences that are contrary to the best interests of the public, (2) the real estate brokerage industry has a significant impact upon the economy of the State of Nebraska, and (3) it is in the best interests of the public to codify in statute the relationships between real estate brokers or salespersons and persons who are sellers, landlords, buyers, or tenants of rights and interests in real property.
For purposes of sections 76-2401 to 76-2430, the definitions found in sections 76-2403 to 76-2415 shall be used.
Adverse material fact shall mean a fact which (1) significantly affects the desirability or value of the property to a party and is not reasonably ascertainable or known to a party or (2) establishes a reasonable belief that another party will not be able to, or does not intend to, complete that party's obligations under a contract creating an interest in real property.
Affiliated licensee shall mean an associate broker as defined in section 81-885.01 or a salesperson as defined in such section who is under the supervision of a designated broker.
Asset management company means a business firm or association that, pursuant to a contractual agreement, common-law agency agreement, power of attorney, or other legal authorization, sells, conveys, or otherwise offers an interest in real property that belongs to a (1) bank, savings and loan association, or other financial institution created and regulated pursuant to state or federal law, (2) mortgage-holding entity chartered by Congress, or (3) federal, state, or local governmental entity.
Brokerage relationship shall mean the relationship created between a designated broker and a client pursuant to sections 76-2401 to 76-2430 relating to the performance of services of a broker as defined in section 81-885.01 and shall also mean the relationship created between the client and the designated broker's affiliated licensees pursuant to sections 76-2401 to 76-2430.
Confidential information shall mean information made confidential by statute, rule, regulation, or written instructions from the client unless the information is made public or becomes public by the words or conduct of the client to whom the information pertains or from a source other than the licensee.
Client shall mean a seller, landlord, buyer, or tenant who has entered into a brokerage relationship with a licensee pursuant to sections 76-2401 to 76-2430 and is the seller, landlord, buyer, or tenant to whom the licensee owes the duty as set forth in such sections.
Commission shall mean the State Real Estate Commission.
Customer shall mean a seller, landlord, buyer, or tenant in a real estate transaction in which a licensee is involved but who has not entered into a brokerage relationship with a licensee.
Designated broker shall have the same meaning as in section 81-885.01.
Dual agent shall mean a limited agent who, with the written informed consent of all parties to a contemplated real estate transaction, has entered into a brokerage relationship with and therefor represents both the seller and buyer or both the landlord and tenant.
Licensee shall mean a designated broker, an associate broker, and a salesperson all as defined in section 81-885.01.
Limited agent shall mean a licensee whose duties and obligations to a client are those set forth in sections 76-2417 to 76-2419.
Single agent shall mean a limited agent who has entered into a brokerage relationship with and therefor represents only one party in a real estate transaction. A single agent may be one of the following:
(1) Buyer's agent, which shall mean a licensee who represents the buyer in a real estate transaction;
(2) Landlord's agent, which shall mean a licensee who represents the landlord in a leasing transaction;
(3) Seller's agent, which shall mean a licensee who represents the seller in a real estate transaction; and
(4) Tenant's agent, which shall mean a licensee who represents the tenant in a leasing transaction.
Subagent shall mean a designated broker, together with his or her affiliated licensees, engaged by another designated broker to act as a limited agent for a client. A subagent owes the same obligations and responsibilities to the client pursuant to section 76-2417 or 76-2418 as does the client's primary designated broker.
(1) When engaged in any of the activities enumerated in subdivision (2) of section 81-885.01, a licensee may act as a limited agent in any transaction as a single agent, subagent, or dual agent. The licensee's general duties and obligations arising from the limited agency relationship shall be disclosed to the seller and the buyer or to the landlord and the tenant pursuant to sections 76-2420 to 76-2422. Alternatively, when engaged in any of the activities enumerated in subdivision (2) of section 81-885.01, a licensee may act as an agent in any transaction in accordance with a written contract as described in subsection (6) of section 76-2422.
(2) A licensee shall be considered a buyer's or tenant's limited agent unless:
(a) The designated broker enters into a written seller's agent or landlord's agent agreement with the party to be represented pursuant to subsection (2) of section 76-2422;
(b) The designated broker enters into a subagency agreement with another designated broker pursuant to subsection (5) of section 76-2422;
(c) The designated broker enters into a written dual agency agreement with the parties to be represented pursuant to subsection (4) of section 76-2422; or
(d) The designated broker enters into a written agency agreement pursuant to subsection (6) of section 76-2422.
(3) Sections 76-2401 to 76-2430 shall not obligate any buyer or tenant to pay compensation to a licensee unless the buyer or tenant has entered into a written agreement with the designated broker specifying the compensation terms in accordance with subsection (3) of section 76-2422.
(4) A licensee may work with a single party in separate transactions pursuant to different relationships, including, but not limited to, selling one property as a seller's agent and working with that seller in buying another property as a buyer's agent or as a subagent if the licensee complies with sections 76-2401 to 76-2430 in establishing the relationships for each transaction.
(1) A licensee representing a seller or landlord as a seller's agent or a landlord's agent shall be a limited agent with the following duties and obligations:
(a) To perform the terms of the written agreement made with the client;
(b) To exercise reasonable skill and care for the client;
(c) To promote the interests of the client with the utmost good faith, loyalty, and fidelity, including:
(i) Seeking a price and terms which are acceptable to the client, except that the licensee shall not be obligated to seek additional offers to purchase the property while the property is subject to a contract for sale or to seek additional offers to lease the property while the property is subject to a lease or letter of intent to lease;
(ii) Except as provided in section 76-2422.01, presenting all written offers to and from the client in a timely manner regardless of whether the property is subject to a contract for sale or lease or a letter of intent to lease;
(iii) Disclosing in writing to the client all adverse material facts actually known by the licensee; and
(iv) Advising the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;
(d) To account in a timely manner for all money and property received;
(e) To comply with all requirements of sections 76-2401 to 76-2430, the Nebraska Real Estate License Act, and any rules and regulations promulgated pursuant to such sections or act; and
(f) To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes and regulations.
(2) A licensee acting as a seller's or landlord's agent shall not disclose any confidential information about the client unless disclosure is required by statute, rule, or regulation or failure to disclose the information would constitute fraudulent misrepresentation. No cause of action for any person shall arise against a licensee acting as a seller's or landlord's agent for making any required or permitted disclosure.
(3)(a) A licensee acting as a seller's or landlord's agent owes no duty or obligation to a buyer, a tenant, or a prospective buyer or tenant, except that a licensee shall disclose in writing to the buyer, tenant, or prospective buyer or tenant all adverse material facts actually known by the licensee. The adverse material facts may include, but are not limited to, adverse material facts pertaining to: (i) Any environmental hazards affecting the property which are required by law to be disclosed; (ii) the physical condition of the property; (iii) any material defects in the property; (iv) any material defects in the title to the property; or (v) any material limitation on the client's ability to perform under the terms of the contract.
(b) A seller's or landlord's agent owes no duty to conduct an independent inspection of the property for the benefit of the buyer, tenant, or prospective buyer or tenant and owes no duty to independently verify the accuracy or completeness of any statement made by the client or any independent inspector.
(4) A seller's or landlord's agent may show alternative properties not owned by the client to prospective buyers or tenants and may list competing properties for sale or lease without breaching any duty or obligation to the client.
(5)(a) A seller or landlord may agree in writing with a seller's or landlord's agent that other designated brokers may be retained and compensated as subagents.
(b) Any designated broker acting as a subagent on the seller's or landlord's behalf shall be a limited agent with the obligations and responsibilities set forth in subsections (1) through (4) of this section.
(1) A licensee representing a buyer or tenant as a buyer's or tenant's agent shall be a limited agent with the following duties and obligations:
(a) To perform the terms of any written agreement made with the client;
(b) To exercise reasonable skill and care for the client;
(c) To promote the interests of the client with the utmost good faith, loyalty, and fidelity, including:
(i) Seeking a price and terms which are acceptable to the client, except that the licensee shall not be obligated to seek other properties while the client is a party to a contract to purchase property or to a lease or letter of intent to lease;
(ii) Except as provided in section 76-2422.01, presenting all written offers to and from the client in a timely manner regardless of whether the client is already a party to a contract to purchase property or is already a party to a contract or a letter of intent to lease;
(iii) Disclosing in writing to the client adverse material facts actually known by the licensee; and
(iv) Advising the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;
(d) To account in a timely manner for all money and property received;
(e) To comply with all requirements of sections 76-2401 to 76-2430, the Nebraska Real Estate License Act, and any rules and regulations promulgated pursuant to such sections or act; and
(f) To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes or regulations.
(2) A licensee acting as a buyer's or tenant's agent shall not disclose any confidential information about the client unless disclosure is required by statute, rule, or regulation or failure to disclose the information would constitute fraudulent misrepresentation. No cause of action for any person shall arise against a licensee acting as a buyer's or tenant's agent for making any required or permitted disclosure.
(3)(a) A licensee acting as a buyer's or tenant's agent owes no duty or obligation to a seller, a landlord, or a prospective seller or landlord, except that the licensee shall disclose in writing to any seller, landlord, or prospective seller or landlord all adverse material facts actually known by the licensee. The adverse material facts may include, but are not limited to, adverse material facts concerning the client's financial ability to perform the terms of the transaction.
(b) A buyer's or tenant's agent owes no duty to conduct an independent investigation of the client's financial condition for the benefit of the customer and owes no duty to independently verify the accuracy or completeness of statements made by the client or any independent inspector.
(4) A buyer's or tenant's agent may show properties in which the client is interested to other prospective buyers or tenants without breaching any duty or obligation to the client. This section shall not be construed to prohibit a buyer's or tenant's agent from showing competing buyers or tenants the same property and from assisting competing buyers or tenants in attempting to purchase or lease a particular property.
(5)(a) A client may agree in writing with a buyer's or tenant's agent that other designated brokers may be retained and compensated as subagents.
(b) Any designated broker acting as a subagent on the buyer's or tenant's behalf shall be a limited agent with the obligations and responsibilities set forth in subsections (1) through (4) of this section.
(1) A licensee may act as a dual agent only with the informed consent of all parties to the transaction. The informed consent shall be evidenced by a written agreement pursuant to section 76-2422.
(2) A dual agent shall be a limited agent for both the seller and buyer or the landlord and tenant and shall have the duties and obligations required by sections 76-2417 and 76-2418 unless otherwise provided for in this section.
(3) Except as provided in subsections (4) and (5) of this section, a dual agent may disclose any information to one client that the licensee gains from the other client if the information is relevant to the transaction or client. A dual agent shall disclose to both clients all adverse material facts actually known by the licensee.
(4) The following information shall not be disclosed by a dual agent without the informed written consent of the client to whom the information pertains:
(a) That a buyer or tenant is willing to pay more than the purchase price or lease rate offered for the property;
(b) That a seller or landlord is willing to accept less than the asking price or lease rate for the property;
(c) What the motivating factors are for any client buying, selling, or leasing the property; and
(d) That a client will agree to financing terms other than those offered.
(5)(a) A dual agent shall not disclose to one client any confidential information about the other client unless the disclosure is required by statute, rule, or regulation or failure to disclose the information would constitute fraudulent misrepresentation.
(b) No cause of action for any person shall arise against a dual agent for making any required or permitted disclosure.
(c) A dual agent does not terminate the dual-agency relationship by making any required or permitted disclosure.
(6) In a dual-agency relationship there shall be no imputation of knowledge or information between any client and the dual agent or among persons within an entity engaged as a dual agent.
(1) Every designated broker shall adopt a written policy which identifies and describes the relationships in which the designated broker and affiliated licensees may engage with any seller, landlord, buyer, or tenant as part of any real estate brokerage activities.
(2) A designated broker shall not be required to offer or engage in more than one of the brokerage relationships enumerated in section 76-2416.
(1) At the earliest practicable opportunity during or following the first substantial contact with a seller, landlord, buyer, or tenant who has not entered into a written agreement for brokerage services with a designated broker, the licensee who is offering brokerage services to that person or who is providing brokerage services for that property shall:
(a) Provide that person with a written copy of the current brokerage disclosure pamphlet which has been prepared and approved by the commission; and
(b) Disclose in writing to that person the types of brokerage relationships the designated broker and affiliated licensees are offering to that person or disclose in writing to that person which party the licensee is representing.
(2) When a seller, landlord, buyer, or tenant has already entered into a written agreement for brokerage services with a designated broker or when a buyer or tenant has a brokerage relationship under sections 76-2401 to 76-2430 without a written agreement, no other licensee shall be required to make the disclosures required by this section.
(3) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a licensee working as an agent or subagent of the seller or landlord with a buyer or tenant who is not represented by a licensee shall provide a written disclosure to the customer which contains the following:
(a) A statement that the licensee is an agent for the seller or landlord and is not an agent for the customer; and
(b) A list of the tasks that the agent acting as a seller's or landlord's agent or subagent may perform with the customer.
(4) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a licensee working as an agent or subagent of the buyer or tenant with a seller or landlord who is not represented by a licensee shall provide a written disclosure to the customer which contains the following:
(a) A statement that the licensee is an agent for the buyer or tenant and is not an agent for the customer; and
(b) A list of the tasks that the agent acting as a buyer's or tenant's agent or subagent may perform with the customer.
(5) The written disclosure required pursuant to subsections (1), (3), and (4) of this section shall contain a signature block for the client or customer to acknowledge receipt of the disclosure. The customer's acknowledgment of disclosure shall not constitute a contract with the licensee. If the customer fails or refuses to sign the disclosure, the licensee shall note that fact on a copy of the disclosure and retain the copy.
(6) A licensee shall not be required to give the written disclosures required by this section to a corporation, limited liability company, partnership, limited liability partnership, or similar entity or to any entity which, if doing business in the State of Nebraska, would be required to be registered with the Secretary of State when such corporation, limited liability company, partnership, limited liability partnership, or entity is purchasing, leasing, or selling real property (a) on which there are five or more residential dwelling units, (b) which is subdivided for five or more residential dwelling units, or (c) any portion of which is zoned or assessed by the county assessor as commercial or industrial property.
(7) Disclosures made in accordance with sections 76-2401 to 76-2430 shall be sufficient to disclose brokerage relationships to the public.
(1) All written agreements for brokerage services on behalf of a seller, landlord, buyer, or tenant shall be entered into by the designated broker on behalf of that broker and affiliated licensees, except that the designated broker may authorize affiliated licensees in writing to enter into the written agreements on behalf of the designated broker. A copy of a written agreement for brokerage services shall be left with the client or clients.
(2) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a designated broker intending to establish a single agency relationship with a seller or landlord shall enter into a written agency agreement with the party to be represented. Except as provided in section 76-2422.01, the agreement shall include a licensee's duties and responsibilities specified in section 76-2417, the terms of compensation, a fixed date of expiration of the agreement, and whether an offer of subagency may be made to any other designated broker, except that if a licensee is a limited seller's agent for a builder, the terms of compensation may be established for a specific new construction property on or before the builder's acceptance of a contract to sell.
(3) Before or while engaging in any of the acts enumerated in subdivision (2) of section 81-885.01, a designated broker acting as a single agent for a buyer or tenant may enter into a written agency agreement with the party to be represented. The agreement shall include a licensee's duties and responsibilities specified in section 76-2418, the terms of compensation, a fixed date of expiration of the agreement, and whether an offer of subagency may be made to any other designated broker.
(4) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a designated broker intending to act as a dual agent shall obtain the written consent of the seller and buyer or landlord and tenant permitting the designated broker to serve as a dual agent. The consent shall include a licensee's duties and responsibilities specified in section 76-2419. The requirements of this subsection are met as to a seller or landlord if the written agreement entered into with the seller or landlord complies with this subsection. The requirements of this subsection are met as to a buyer or tenant if a consent or buyer's or tenant's agency agreement is signed by a potential buyer or tenant which complies with this subsection. The consent of the buyer or tenant does not need to refer to a specific property and may refer generally to all properties for which the buyer's or tenant's agent may also be acting as a seller's or landlord's agent and would be a dual agent. If a licensee is acting as a dual agent with regard to a specific property, the seller and buyer or landlord and tenant shall confirm in writing the dual-agency status and the party or parties responsible for paying any compensation prior to or at the time a contract to purchase property or a lease or letter of intent to lease is entered into for the specific property.
(5) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a designated broker intending to act as a subagent shall enter into a written contract with the primary designated broker for the client. If a designated broker has made a unilateral offer of subagency, another designated broker can enter into the subagency relationship by the act of disclosing to the customer that he or she is a subagent of the client.
(6) Before engaging in any of the activities enumerated in subdivision (2) of section 81-885.01, a designated broker who intends to establish an agency relationship with any party or parties to a transaction in which the designated broker's duties and responsibilities exceed those contained in sections 76-2417 and 76-2418 shall enter into a written agency agreement with a party or parties to the transaction to perform services on their behalf. The agreement shall specify the agent's duties and responsibilities, including any duty of confidentiality, and the terms of compensation. Any agreement under this subsection shall be subject to the common-law requirements of agency applicable to real estate licensees.
(1) A licensee shall be exempt from the requirements of subdivision (1)(c)(ii) of section 76-2417 and subdivision (1)(c)(ii) of section 76-2418 if the client to whom the written offer is required to be presented by such licensee is an asset management company.
(2) A licensee shall be exempt from the provision contained in subsection (2) of section 76-2422 that requires the inclusion of specific duties and responsibilities specified in section 76-2417 in the written agreement if the client is an asset management company.
(1)(a) The relationships set forth in sections 76-2401 to 76-2430 shall commence at the time that the licensee begins representing a client and continue until performance or completion of the representation.
(b) If the representation is not performed or completed for any reason, the relationship shall end at the earlier of:
(i) The date of expiration agreed upon by the parties; or
(ii) The termination or relinquishment of the relationship by the parties.
(2) Except as otherwise agreed in writing, a licensee shall owe no further duty or obligation after termination or expiration of the contract or representation or completion of performance except the duties of:
(a) Accounting for all money and property related to and received during the relationship; and
(b) Keeping confidential all information received during the course of the relationship which was made confidential by sections 76-2401 to 76-2430, by instructions from the client, or by the policy of the designated broker unless:
(i) The client to whom the information pertains grants written consent to disclose the information; or
(ii) Disclosure of the information is required by law.
(1) In any real estate transaction, the designated broker's compensation may be paid by the seller, the landlord, the buyer, the tenant, or a third party or by sharing the compensation between designated brokers.
(2) Payment of compensation by itself shall not establish an agency relationship between the party who paid the compensation and the designated broker or any affiliated licensee.
(3) A seller or landlord may agree that a single agent designated broker or subagent may share with another designated broker the compensation paid by the seller or landlord.
(4) A buyer or tenant may agree that a single agent designated broker or subagent may share with another designated broker the compensation paid by the buyer or tenant.
(5) A designated broker may be compensated by more than one party for services in a transaction if the parties consent in writing to the multiple payments at or before the time of entering into a contract to buy, sell, or lease.
Violation of any provision of sections 76-2401 to 76-2430 by a licensee shall constitute an unfair trade practice pursuant to section 81-885.24 for which the commission may investigate and take administrative action against the licensee pursuant to the Nebraska Real Estate License Act.
(1) A client shall not be liable for a misrepresentation of his or her limited agent arising out of the limited-agency agreement unless the client knew or should have known of the misrepresentation.
(2) A licensee who is serving as a limited agent or subagent of a client shall not be liable for a misrepresentation of his or her client arising out of the brokerage-services agreement unless the licensee knew or should have known of the misrepresentation.
(3) A licensee who is serving as a limited agent of a client shall not be liable for a misrepresentation of any subagent unless the licensee knew or should have known of the misrepresentation.
(4) A licensee who is serving as a subagent shall not be liable for a misrepresentation of the primary limited agent unless the subagent knew or should have known of the misrepresentation.
A designated broker entering into a limited agency agreement with a client for the listing of property or for the purpose of representing that person in the buying, selling, exchanging, renting, or leasing of real estate may appoint in writing those affiliated licensees who will be acting as limited agents of that client to the exclusion of all other affiliated licensees. A designated broker shall not be considered to be a dual agent solely because he or she makes an appointment under this section, except that any licensee who personally represents both the seller and buyer or both the landlord and tenant in a particular transaction shall be a dual agent and shall be required to comply with the provisions of sections 76-2401 to 76-2430 governing dual agents.
(1) All affiliated licensees to the extent allowed by their licenses shall have the same duties and responsibilities to the client and customer pursuant to sections 76-2417 to 76-2419 as the designated broker except as provided in section 76-2427.
(2) All affiliated licensees have the same protections from vicarious liability as their designated broker.
Sections 76-2401 to 76-2430 shall supersede the duties and responsibilities of the parties under the common law, including fiduciary responsibilities of an agent to a principal, except as provided in subsection (6) of section 76-2422. Sections 76-2401 to 76-2430 shall be construed broadly to accomplish their purposes.
The commission shall adopt and promulgate rules and regulations to carry out sections 76-2401 to 76-2430.
Sections 76-2501 to 76-2506 shall be known and may be cited as the Nebraska Plane Coordinate System Act.
(1) For purposes of the Nebraska Plane Coordinate System Act, Nebraska Plane Coordinate System means the system of plane coordinates for designating the geographic position of points on, within, or above the surface of the earth, within the State of Nebraska, defined or located in reference to the National Spatial Reference System, or its successors, which have been established by the National Ocean Service/National Geodetic Survey, or its successors, for defining and stating the geographic positions or locations of points on the surface of the earth, within the State of Nebraska; and
(2) For purposes of more precisely defining the Nebraska Plane Coordinate System, it shall be the most recent system of plane coordinates adopted by the Geographic Information Systems Council, supported and published by the National Geodetic Survey, based on the National Spatial Reference System, and known as the State Plane Coordinate System, for defining and stating the geographic positions or locations of points within the State of Nebraska.
The plane coordinate values for a point on the earth's surface used to express the geographic position or location of such point of the Nebraska Plane Coordinate System shall consist of two distances expressed in feet and decimals of a foot or meters and decimals of a meter when using the Nebraska Plane Coordinate System. When the values are expressed in feet, a definition of one foot equals 0.3048 meters exactly must be used. One of the distances, to be known as the "northing or y-coordinate", shall give the position in a north-and-south direction. The other, to be known as the "easting or x-coordinate", shall give the position in an east-and-west direction.
No coordinate or coordinates based on the Nebraska Plane Coordinate System purporting to define the position of a point on a land boundary shall be presented to be recorded in any public land record, plat, easement, exhibit, certified corner record, or deed record unless such coordinate or coordinates are accompanied by a description of the horizontal datum, realization, and methodology used and published within the same document. The State Surveyor may grant a waiver of the requirements of this section upon submission of evidence that the standards of accuracy and specifications used exceed the requirements of this section.
(1) The use of the term "Nebraska Plane Coordinate System" on any map, report, survey, or other document shall be limited to coordinates based upon the Nebraska Plane Coordinate System.
(2) The provisions of the Nebraska Plane Coordinate System Act shall not be construed to prohibit the appropriate use of other geodetic reference networks.
(1) Descriptions of tracts of land by reference to subdivisions, lines or corners of the United States Public Land Survey System or other original pertinent surveys, are recognized as the basic and prevailing method for describing tracts of land. Whenever coordinates of the Nebraska Plane Coordinate System are used in descriptions of tracts of land, they shall be construed as being supplementary to such descriptions. In the event of any conflict, coordinates of the Nebraska Plane Coordinate System shall not determine the issue, but may be used as collateral facts to show additional evidence.
(2) Descriptions of tracts of land shall not be described entirely by coordinates of the Nebraska Plane Coordinate System or any other plane coordinate system.
(3) Nothing in this section requires a purchaser, mortgagee, or insurer of real property to rely on a land description, any part of which depends exclusively upon the Nebraska Plane Coordinate System.
Sections 76-2601 to 76-2613 may be cited as the Uniform Environmental Covenants Act.
In the Uniform Environmental Covenants Act:
(1) Activity and use limitations means restrictions or obligations created under the act with respect to real property.
(2) Agency means the Department of Environment and Energy or any other Nebraska or federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created.
(3) Common interest community means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.
(4) Environmental covenant means a servitude arising under an environmental response project that imposes activity and use limitations.
(5) Environmental response project means a plan or work performed for environmental remediation of real property and conducted:
(A) Under a federal or state program governing environmental remediation of real property, including the Petroleum Release Remedial Action Act;
(B) Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or
(C) Under a state voluntary cleanup program authorized by the Remedial Action Plan Monitoring Act.
(6) Holder means the grantee of an environmental covenant as specified in subsection (a) of section 76-2603.
(7) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) Record, used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(a) Any person, including a person that owns an interest in the real property, may be a holder, except that the State of Nebraska, a municipality, or another unit of local government may not be a holder unless it is the owner of the real property. An environmental covenant may identify more than one holder. The interest of a holder is an interest in real property.
(b) A right of an agency under the Uniform Environmental Covenants Act or under an environmental covenant, other than a right as a holder, is not an interest in real property.
(c) An agency is only bound by any obligation it expressly assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections granted or imposed under law other than the act except as provided in the covenant.
(d) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
(1) A prior interest is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant.
(2) The act does not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant.
(3) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association.
(4) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
(a) An environmental covenant must:
(1) State that the instrument is an environmental covenant executed pursuant to the Uniform Environmental Covenants Act;
(2) Contain a legally sufficient description of the real property subject to the covenant;
(3) Describe the activity and use limitations on the real property;
(4) Identify every holder;
(5) Be signed by the agency, every holder, and unless waived by the agency every owner of the fee simple of the real property subject to the covenant; and
(6) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(b) In addition to the information required by subsection (a) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any:
(1) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
(2) Requirements for periodic reporting describing compliance with the covenant;
(3) Rights of access to the property granted in connection with implementation or enforcement of the covenant;
(4) A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
(5) Limitation on amendment or termination of the covenant in addition to those contained in sections 76-2609 and 76-2610;
(6) Rights of the holder in addition to its right to enforce the covenant pursuant to section 76-2611; and
(7) Rights to enforce granted to any person.
(c) In addition to other conditions for its approval of an environmental covenant, the agency may require that those persons specified by the agency who have interests in the real property have signed the covenant.
(a) An environmental covenant that complies with the Uniform Environmental Covenants Act runs with the land.
(b) An environmental covenant that is otherwise effective is valid and enforceable even if:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to a person other than the original holder;
(3) It is not of a character that has been recognized traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder;
(6) The benefit or burden does not touch or concern real property;
(7) There is no privity of estate or contract;
(8) The holder dies, ceases to exist, resigns, or is replaced; or
(9) The owner of an interest subject to the environmental covenant and the holder are the same person.
(c) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before September 4, 2005, is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) of this section or because it was identified as an easement, servitude, deed restriction, or other interest. The act does not apply in any other respect to such an instrument.
(d) The act does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.
The Uniform Environmental Covenants Act does not authorize a use of real property that is otherwise prohibited by zoning, by law other than the act regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are authorized by zoning or by law other than the act.
(a) A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to:
(1) Each person that signed the covenant;
(2) Each person holding a recorded interest in the real property subject to the covenant;
(3) Each person in possession of the real property subject to the covenant;
(4) Each municipality or other unit of local government in which real property subject to the covenant is located; and
(5) Any other person the agency requires.
(b) The validity of a covenant is not affected by failure to provide a copy of the covenant as required under this section.
(a) An environmental covenant, any amendment or termination of the covenant under section 76-2609 or 76-2610, and any subordination agreement must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
(b) Except as otherwise provided in subsection (c) of section 76-2609, an environmental covenant is subject to the laws of this state governing recording and priority of interests in real property.
(c) A copy of a document recorded under subsection (a) of this section shall also be provided to the Department of Environment and Energy if the department has not signed the covenant.
(d) The department shall make available to the public a listing of all documents under subsection (a) of this section or documents under subsection (c) of this section which have been provided to the department.
(a) An environmental covenant is perpetual unless it is:
(1) By its terms limited to a specific duration or terminated by the occurrence of a specific event;
(2) Terminated by consent pursuant to section 76-2610;
(3) Terminated pursuant to subsection (b) of this section;
(4) Terminated by foreclosure of an interest that has priority over the environmental covenant; or
(5) Terminated or modified in an eminent domain proceeding, but only if:
(A) The agency that signed the covenant is a party to the proceeding;
(B) All persons identified in subsections (a) and (b) of section 76-2610 are given notice of the pendency of the proceeding; and
(C) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(b) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b) of section 76-2610 have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant. The agency's determination or its failure to make a determination upon request is subject to review pursuant to the Administrative Procedure Act.
(c) Except as otherwise provided in subsections (a) and (b) of this section, an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(d) An environmental covenant may not be extinguished, limited, or impaired by application of sections 57-227 to 57-239, 72-301 to 72-314, or 76-288 to 76-298.
(a) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:
(1) The agency;
(2) Unless waived by the agency, the current owner of the fee simple of the real property subject to the covenant;
(3) Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
(4) Except as otherwise provided in subdivision (d)(2) of this section, the holder.
(b) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
(c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.
(d) Except as otherwise provided in an environmental covenant:
(1) A holder may not assign its interest without consent of the other parties;
(2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this section; and
(e) A court of competent jurisdiction may fill a vacancy in the position of holder.
(a) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:
(1) A party to the covenant;
(2) The agency;
(3) Any person to whom the covenant expressly grants power to enforce;
(4) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or
(5) A municipality or other unit of local government in which the real property subject to the covenant is located.
(b) The Uniform Environmental Covenants Act does not limit the regulatory authority of the agency under law other than the Uniform Environmental Covenants Act with respect to an environmental response project.
(c) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.
(d) The Uniform Environmental Covenants Act does not limit the right of any person to recover damages under any other provision of law.
In applying and construing the Uniform Environmental Covenants Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
The Uniform Environmental Covenants Act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101 of that act, 15 U.S.C. 7001(a), or authorize electronic delivery of any of the notices described in section 103 of that act, 15 U.S.C. 7003(b).
Sections 76-2701 to 76-2728 shall be known and may be cited as the Nebraska Foreclosure Protection Act.
The Legislature hereby finds, determines, and declares that home ownership and the accumulation of equity in one's home provide significant social and economic benefits to the state and its citizens. Unfortunately, too many homeowners in financial distress, especially the poor, elderly, and financially unsophisticated, are vulnerable to a variety of deceptive or unconscionable business practices designed to dispossess them or otherwise strip the equity from their homes. There is a compelling need to curtail and prevent the most deceptive and unconscionable of these business practices, provide each homeowner with information necessary to make an informed and intelligent decision regarding transactions with certain foreclosure consultants and equity purchasers, provide certain minimum requirements for contracts between such parties, including statutory rights to cancel such contracts, and ensure and foster fair dealing in the sale and purchase of homes in foreclosure. Therefor, it is the intent of the Legislature that all violations of the Nebraska Foreclosure Protection Act have a significant public impact and that the terms of the act be liberally construed to achieve these purposes.
For purposes of the Nebraska Foreclosure Protection Act, unless the context otherwise requires, the definitions found in sections 76-2704 to 76-2712 apply.
Associate means a partner, a subsidiary, an affiliate, an agent, or any other person working in association with a foreclosure consultant or an equity purchaser. Associate does not include a person who is excluded from the definition of an equity purchaser or a foreclosure consultant.
Equity purchase contract means an agreement between an equity purchaser and a homeowner pertaining to the acquisition of title to the homeowner's personal residence.
Equity purchaser means a person who, in the course of the person's business, vocation, or occupation, acquires title to a residence in foreclosure. Equity purchaser does not include a person who acquires such title:
(1) For the purpose of using such property as his or her personal residence for at least one year;
(2) By a deed in lieu of foreclosure to the holder of an evidence of debt, or an associate of the holder of an evidence of debt, of a consensual lien or encumbrance of record, if such consensual lien or encumbrance is recorded in the register of deeds office of the county where the residence in foreclosure is located prior to a foreclosure sale;
(3) By a deed from any trustee, sheriff, or other person appointed by a court as a result of a foreclosure sale;
(4) At a sale of property authorized by statute;
(5) By order or judgment of any court;
(6) From the person's spouse, relative, or relative of a spouse, by the half or whole blood or by adoption, or from a guardian, conservator, or personal representative of such person; or
(7) While performing services as a part of a person's normal business activities under any law of this state or the United States that regulates banks, trust companies, savings and loan associations, credit unions, insurance companies, title insurers, insurance producers, or escrow companies authorized to conduct business in this state, an affiliate or subsidiary of such person, or an employee or agent acting on behalf of such person.
Evidence of debt means a writing that evidences a promise to pay or a right to the payment of a monetary obligation such as a promissory note; bond; negotiable instrument; loan, credit, or similar agreement; or monetary judgment entered by a court of competent jurisdiction.
(1) Foreclosure consultant means a person who:
(a) Does not, directly or through an associate, take or acquire any interest in or title to the residence in foreclosure; and
(b) In the course of such person's business, vocation, or occupation, makes a solicitation, representation, or offer to a homeowner to perform, in exchange for compensation from the homeowner or from the proceeds of any loan or advance of funds, a service that the person represents will do any of the following:
(i) Stop or postpone a foreclosure sale;
(ii) Obtain a forbearance from a beneficiary under a deed of trust, mortgage, or other lien;
(iii) Assist the homeowner in exercising a right to cure a default;
(iv) Obtain an extension of the period within which the homeowner may cure a default;
(v) Obtain a waiver of an acceleration clause contained in an evidence of debt secured by a deed of trust, mortgage, or other lien on a residence in foreclosure or contained in such deed of trust, mortgage, or other lien;
(vi) Assist the homeowner to obtain a loan or an advance of funds;
(vii) Avoid or reduce the impairment of the homeowner's credit resulting from the recording of a notice of election and demand for sale, commencement of a judicial foreclosure action, any foreclosure sale or the granting of a deed in lieu of foreclosure, or any late payment or other failure to pay or perform under the evidence of debt, the deed of trust, or other lien securing such evidence of debt;
(viii) In any way delay, hinder, or prevent the foreclosure upon the homeowner's residence; or
(ix) Assist the homeowner in obtaining from the beneficiary, mortgagee, or grantee of the lien in foreclosure, or from counsel for such beneficiary, mortgagee, or grantee, the remaining or excess proceeds from the foreclosure sale of the residence in foreclosure.
(2) Foreclosure consultant does not include:
(a) A person licensed to practice law in this state while performing any activity related to the person's attorney-client relationship with a homeowner or any activity related to the person's attorney-client relationship with the beneficiary, mortgagee, grantee, or holder of any lien being enforced by way of foreclosure;
(b) A holder or servicer of an evidence of debt or the attorney for the holder or servicer of an evidence of debt secured by a deed of trust or other lien on any residence in foreclosure while the person performs services in connection with the evidence of debt, lien, deed of trust, or other lien securing such debt;
(c) A person doing business under any law of this state or the United States, which law regulates banks, trust companies, savings and loan associations, credit unions, insurance companies, title insurers, insurance producers, or escrow companies authorized to conduct business in the state, while the person performs services as part of the person's normal business activities, an affiliate or subsidiary of any of such entities, or an employee or agent acting on behalf of any of such entities;
(d) A person originating or closing a loan in a person's normal course of business, if, as to that loan:
(i) The loan is subject to the requirements of the federal Real Estate Settlement Procedures Act of 1974, 12 U.S.C. 2601 et seq., as the act existed on July 18, 2008; or
(ii) With respect to any junior mortgage or home equity line of credit, the loan is subordinate to and closed simultaneously with a qualified first mortgage loan under subdivision (2)(d)(i) of this section or is initially payable on the face of the note or contract to an entity included in subdivision (2)(c) of this section;
(e) A judgment creditor of the homeowner;
(f) A title insurance company or title insurance agent authorized to conduct business in this state while performing title insurance and settlement services;
(g) A person licensed as a real estate broker, associate broker, or real estate salesperson pursuant to the Nebraska Real Estate License Act while the person engages in any activity for which the person is licensed; or
(h) A nonprofit organization that solely offers counseling or advice to homeowners in foreclosure or loan default, unless the organization is an associate of the foreclosure consultant.
Foreclosure consulting contract means any agreement between a foreclosure consultant and a homeowner.
Holder of evidence of debt means the person in actual possession of or otherwise entitled to enforce an evidence of debt, except that holder of evidence of debt does not include a person acting as a nominee solely for the purpose of holding the evidence of debt or deed of trust as an electronic registry without any authority to enforce the evidence of debt or deed of trust. The following persons are presumed to be the holder of evidence of debt:
(1) The person who is the obligee of and who is in possession of an original evidence of debt;
(2) The person in possession of an original evidence of debt together with the proper endorsement or assignment thereof to such person;
(3) The person in possession of a negotiable instrument evidencing a debt which has been duly negotiated to such person or to bearer or indorsed in blank; or
(4) The person in possession of an evidence of debt with authority, which may be granted by the original evidence of debt or deed of trust, to enforce the evidence of debt as an agent, a nominee, or a trustee or in a similar capacity for the obligee of the evidence of debt.
Homeowner means the owner of a residence in foreclosure, including a vendee under a contract for deed to real property as defined in section 45-1002.
Residence in foreclosure means a residence or dwelling that is occupied as the homeowner's principal place of residence and against which any type of foreclosure action, including, but not limited to, the filing of a notice of default of a deed of trust or the filing of a lawsuit to foreclose a mortgage or other lien, has been commenced.
(1) A foreclosure consulting contract shall be in writing and provided to and retained by the homeowner, with changes, alterations, or modifications, for review at least twenty-four hours before it is signed by the homeowner.
(2) A foreclosure consulting contract shall be printed in at least twelve-point type and shall include the name, address, facsimile number, and email address of the foreclosure consultant to which a notice of cancellation may be delivered and the date the homeowner signed the contract.
(3) A foreclosure consulting contract shall fully disclose the exact nature of the foreclosure consulting services to be provided and the total amount and terms of any compensation to be received by the foreclosure consultant or associate.
(4) A foreclosure consulting contract shall be dated and personally signed, with each page being initialed by each homeowner of the residence in foreclosure and the foreclosure consultant, and shall be acknowledged by a notary public in the presence of the homeowner at the time the contract is signed by the homeowner.
(5) A foreclosure consulting contract shall contain the following notice, which shall be printed in at least fourteen-point, boldface type, completed with the name of the foreclosure consultant, and located in immediate proximity to the space reserved for the homeowner's signature:
NOTICE REQUIRED BY NEBRASKA LAW
............... (NAME OF FORECLOSURE CONSULTANT) OR (HIS/HER/ITS) ASSOCIATE CANNOT ASK YOU TO SIGN OR HAVE YOU SIGN ANY DOCUMENT THAT TRANSFERS ANY INTEREST IN YOUR HOME OR PROPERTY TO (HIM/HER/IT) OR (HIS/HER/ITS) ASSOCIATE.
............... (NAME OF FORECLOSURE CONSULTANT) OR (HIS/HER/ITS) ASSOCIATE CANNOT GUARANTEE YOU THAT THEY WILL BE ABLE TO REFINANCE YOUR HOME OR ARRANGE FOR YOU TO KEEP YOUR HOME. YOU MAY, AT ANY TIME, CANCEL THIS CONTRACT, WITHOUT PENALTY OF ANY KIND.
IF YOU WANT TO CANCEL THIS CONTRACT, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS NOTICE OF CANCELLATION, OR ANY OTHER WRITTEN NOTICE, INDICATING YOUR INTENT TO CANCEL TO ............... (NAME OF FORECLOSURE CONSULTANT) AT ............... (ADDRESS OF FORECLOSURE CONSULTANT, INCLUDING FACSIMILE NUMBER AND EMAIL ADDRESS).
AS PART OF ANY CANCELLATION, YOU (THE HOMEOWNER) MUST REPAY ANY MONEY ACTUALLY SPENT ON YOUR BEHALF BY ............... (NAME OF FORECLOSURE CONSULTANT) PRIOR TO RECEIPT OF THIS NOTICE AND, AS A RESULT OF THIS AGREEMENT, WITHIN SIXTY DAYS, ALONG WITH INTEREST AT THE PRIME RATE PUBLISHED BY THE FEDERAL RESERVE BOARD PLUS TWO PERCENTAGE POINTS, WITH THE TOTAL INTEREST RATE NOT TO EXCEED EIGHT PERCENT PER YEAR.
THIS IS AN IMPORTANT LEGAL CONTRACT AND COULD RESULT IN THE LOSS OF YOUR HOME. CONTACT AN ATTORNEY OR A HOUSING COUNSELOR APPROVED BY THE FEDERAL DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT BEFORE SIGNING.
(6) A completed form in duplicate, captioned NOTICE OF CANCELLATION, shall accompany a foreclosure consulting contract. The notice of cancellation shall:
(a) Be on a separate sheet of paper attached to the contract;
(b) Be easily detachable; and
(c) Contain the following statement, printed in at least fourteen-point type:
NOTICE OF CANCELLATION
............... (DATE OF CONTRACT)
TO: (NAME OF FORECLOSURE CONSULTANT)
(ADDRESS OF FORECLOSURE CONSULTANT, INCLUDING FACSIMILE NUMBER AND EMAIL ADDRESS)
I HEREBY CANCEL THIS CONTRACT.
............... (DATE)
............... (HOMEOWNER'S SIGNATURE)
(7) A foreclosure consultant shall provide to the homeowner a signed, dated, and acknowledged copy of the foreclosure consulting contract and the attached notice of cancellation immediately upon execution of the contract.
(8) The time during which the homeowner may cancel a foreclosure consulting contract does not begin to run until the foreclosure consultant has complied with this section.
(1) In addition to any right of rescission available under state or federal law, a homeowner has the right to cancel a foreclosure consulting contract at any time.
(2) Cancellation occurs when a homeowner gives written notice of cancellation of the foreclosure consulting contract to the foreclosure consultant at the address specified in the contract or through any facsimile number or email address identified in the contract or other materials provided to the homeowner by the foreclosure consultant.
(3) Notice of cancellation, if given by mail, is effective when deposited in the United States mail, properly addressed, with postage prepaid.
(4) Notice of cancellation need not be in the form provided with the contract and is effective, however expressed, if it indicates the intention of the homeowner to cancel the foreclosure consulting contract.
(5) As part of the cancellation of a foreclosure consulting contract, the homeowner shall repay, within sixty days after the date of cancellation, all funds paid or advanced in good faith prior to the receipt of notice of cancellation by the foreclosure consultant or his or her associate under the terms of the foreclosure consulting contract, together with interest at the prime rate published by the Federal Reserve Board plus two percentage points, with the total interest rate not to exceed eight percent per year, from the date of expenditure until repaid by the homeowner.
(6) Except as provided in subsection (5) of this section, the right to cancel shall not be conditioned on the repayment of any funds.
A provision in a foreclosure consulting contract is void as against public policy if the provision attempts or purports to:
(1) Waive any of the rights specified in sections 76-2713 to 76-2718 or the right to a jury trial;
(2) Consent to jurisdiction for litigation or choice of law in a state other than Nebraska;
(3) Consent to venue in a county other than the county in which the residence in foreclosure is located; or
(4) Impose any costs or fees greater than the actual costs and fees.
A foreclosure consultant shall not:
(1) Claim, demand, charge, collect, or receive any compensation until after the foreclosure consultant has fully performed each and every service the foreclosure consultant contracted to perform or represented that the foreclosure consultant would perform;
(2) Claim, demand, charge, collect, or receive any interest or any other compensation for a loan that the foreclosure consultant makes to the homeowner that exceeds the prime rate published by the Federal Reserve Board at the time of any loan plus two percentage points, with the total interest rate not to exceed eight percent per year;
(3) Take a wage assignment, a lien of any type on real or personal property, or any other security to secure the payment of compensation;
(4) Receive any consideration from a third party in connection with foreclosure consulting services provided to a homeowner unless the consideration is first fully disclosed in writing to the homeowner;
(5) Acquire an interest, directly, indirectly, or through an associate, in the real or personal property of a homeowner with whom the foreclosure consultant has contracted;
(6) Obtain a power of attorney from a homeowner for any purpose other than to inspect documents as provided by law; or
(7) Induce or attempt to induce a homeowner to enter into a foreclosure consulting contract that does not comply in all respects with sections 76-2713 to 76-2718.
(1) A foreclosure consultant or associate may not facilitate or engage in any transaction that is unconscionable given the terms and circumstances of the transaction.
(2)(a) If a court, as a matter of law, finds a foreclosure consulting contract or any clause of such contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or so limit the application of any unconscionable clause as to avoid an unconscionable result.
(b) When it is claimed or appears to the court that a foreclosure consulting contract or any clause of such contract may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.
(c) In order to support a finding of unconscionability, there must be evidence of an unreasonable inequality of bargaining power or other circumstances in which there is an absence of meaningful choice for one of the parties, together with contract terms that are, under standard industry practices, unreasonably favorable to the foreclosure consultant or associate.
A foreclosure consulting contract, and all notices of cancellation provided for therein, shall be written in English and shall be accompanied by a written translation from English into any other language principally spoken by the homeowner, certified by the person making the translation as a true and correct translation of the English version. The translated version shall be presumed to have equal status and credibility as the English version.
Every equity purchase contract shall be written in at least twelve-point, boldface type and fully completed, signed, and dated by the homeowner and equity purchaser prior to the execution of any instrument quitclaiming, assigning, transferring, conveying, or encumbering an interest in the residence in foreclosure.
(1) Every equity purchase contract shall contain the entire agreement of the parties and shall include the following:
(a) The name, business address, telephone number, facsimile number, and email address of the equity purchaser;
(b) The street address and full legal description of the residence in foreclosure;
(c) Clear and conspicuous disclosure of any financial or legal obligations of the homeowner that will be assumed by the equity purchaser. If the equity purchaser will not be assuming any financial or legal obligations of the homeowner, the equity purchase contract shall so state;
(d) The total consideration to be paid by the equity purchaser in connection with or incident to the acquisition by the equity purchaser of the residence in foreclosure;
(e) The terms of payment or other consideration, including, but not limited to, any services of any nature that the equity purchaser represents will be performed for the homeowner before or after the sale;
(f) The date and time when possession of the residence in foreclosure is to be transferred to the equity purchaser;
(g) The terms of any rental agreement or lease;
(h) The specifications of any option or right to repurchase the residence in foreclosure, including the specific amounts of any escrow deposit, downpayment, purchase price, closing costs, commissions, or other fees or costs;
(i) A notice of cancellation as provided in section 76-2722; and
(j) The following notice, in at least fourteen-point, boldface type, completed with the name of the equity purchaser, immediately above the statement required by section 76-2722:
NOTICE REQUIRED BY NEBRASKA LAW
UNTIL YOUR RIGHT TO CANCEL THIS CONTRACT HAS ENDED, .................... (NAME) OR ANYONE WORKING FOR .................... (NAME) CANNOT ASK YOU TO SIGN OR HAVE YOU SIGN ANY DEED OR ANY OTHER DOCUMENT.
(2) The equity purchase contract required by this section survives delivery of any instrument of conveyance of the residence in foreclosure, but does not have any effect on persons other than the parties to the contract or affect title to the residence in foreclosure.
(1)(a) In addition to any right of rescission available under state or federal law, a homeowner has the right to cancel an equity purchase contract until midnight of the third business day following the day on which the homeowner signs a contract that complies with the Nebraska Foreclosure Protection Act or until noon on the last business day before the foreclosure sale of the residence in foreclosure, whichever occurs first.
(b) There shall be no right to cancel under the act with regard to any equity purchase contract executed on or after noon of the last business day before the foreclosure sale of the residence in foreclosure, if the homeowner first agrees to enter into an equity purchase contract with the equity purchaser on or after noon of the last business day before the foreclosure sale.
(2) Cancellation occurs when a homeowner personally delivers written notice of cancellation to the address specified in the equity purchase contract or upon deposit of such notice in the United States mail, properly addressed, with postage prepaid.
(3) A notice of cancellation given by a homeowner need not take the particular form as provided with the equity purchase contract and, however expressed, is effective if it indicates the intention of the homeowner not to be bound by the equity purchase contract.
(4) In the absence of any written notice of cancellation from a homeowner, the execution by the homeowner of a deed or other instrument of conveyance of an interest in the residence in foreclosure to the equity purchaser after the expiration of the rescission period creates a rebuttable presumption that the homeowner did not cancel the equity purchase contract.
(1)(a) The equity purchase contract shall contain, as the last provision before the space reserved for the homeowner's signature, a conspicuous statement in at least twelve-point, boldface type, as follows:
YOU MAY CANCEL THIS CONTRACT FOR THE SALE OF YOUR HOUSE WITHOUT ANY PENALTY OR OBLIGATION AT ANY TIME BEFORE ............... (DATE AND TIME OF DAY). SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
(b) The equity purchaser shall accurately specify, within the equity purchase contract, the date and time of day on which the cancellation right ends.
(c) If no right to cancel the equity purchase contract exists under the Nebraska Foreclosure Protection Act as set forth in subdivision (1)(b) of section 76-2721, the equity purchase contract shall conspicuously state that no such cancellation right exists.
(2) The equity purchase contract shall be accompanied by duplicate completed forms, captioned Notice of Cancellation in at least twelve-point, boldface type if the equity purchase contract is printed or in capital letters if the equity purchase contract is typed, followed by a space in which the equity purchaser shall enter the date on which the homeowner executed the equity purchase contract. Such form shall:
(a) Be attached to the equity purchase contract;
(b) Be easily detachable; and
(c) Contain the following statement, in at least ten-point type if the equity purchase contract is printed or in capital letters if the contract is typed:
NOTICE OF CANCELLATION
............... (ENTER DATE EQUITY PURCHASE CONTRACT WAS SIGNED). YOU MAY CANCEL THIS CONTRACT FOR THE SALE OF YOUR HOUSE, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME BEFORE ............... (ENTER DATE AND TIME OF DAY). TO CANCEL THIS TRANSACTION, PERSONALLY DELIVER A SIGNED AND DATED COPY OF THIS NOTICE OF CANCELLATION IN THE UNITED STATES MAIL, POSTAGE PREPAID, TO ..............., (NAME OF PURCHASER) AT ............... (STREET ADDRESS OF PURCHASER'S PLACE OF BUSINESS) NOT LATER THAN ............... (ENTER DATE AND TIME OF DAY). I HEREBY CANCEL THIS TRANSACTION
............... (DATE)
............... (SELLER'S SIGNATURE).
(3) The equity purchaser shall provide the homeowner with a copy of the equity purchase contract and the attached notice of cancellation.
(4) The time during which the homeowner may cancel the equity purchase contract does not begin to run until the equity purchaser has complied with this section.
A transaction in which a homeowner purports to grant a residence in foreclosure to an equity purchaser by an instrument that appears to be an absolute conveyance and in which an option to repurchase is reserved to the homeowner or is given by the equity purchaser to the homeowner shall be permitted only where all of the following conditions have been met:
(1) The reconveyance contract complies in all respects with section 76-2720;
(2) The reconveyance contract provides the homeowner with a nonwaivable, thirty-day right to cure any default of the reconveyance contract and specifies that the homeowner may exercise this right to cure on at least three separate occasions during the term of such reconveyance contract;
(3) The equity purchaser fully assumes or discharges the lien in foreclosure as well as any prior liens that will not be extinguished by the foreclosure, which assumption or discharge shall be accomplished without a violation of the terms and conditions of the liens being assumed or discharged;
(4) The equity purchaser verifies and can demonstrate that the homeowner has or will have a reasonable ability to make the lease payments and to repurchase the residence in foreclosure within the term of the option to repurchase under the reconveyance contract. For purposes of this section, there is a rebuttable presumption that the homeowner has a reasonable ability to make lease payments and to repurchase the residence in foreclosure if the homeowner's payments for primary housing expenses and regular principal and interest payments on other personal debt do not exceed sixty percent of the homeowner's monthly gross income; and
(5) The price the homeowner must pay to exercise the option to repurchase the residence in foreclosure is not unconscionable. Without limitation on available claims under section 76-2726, a repurchase price exceeding twenty-five percent of the price at which the equity purchaser acquired the residence in foreclosure creates a rebuttable presumption that the reconveyance contract is unconscionable. The acquisition price paid by the equity purchaser may include any actual costs incurred by the equity purchaser in acquiring the residence in foreclosure, including repairs and capital improvements, and may include below market rent discounts. The equity purchaser shall provide the homeowner with documentation proving such costs and below market rent discounts prior to the homeowner's exercise of the option to purchase.
A provision in an equity purchase contract between an equity purchaser and a homeowner is void as against public policy if it attempts or purports to:
(1) Waive any of the rights specified in sections 76-2719 to 76-2727 or the right to a jury trial;
(2) Consent to jurisdiction for litigation or choice of law in a state other than Nebraska;
(3) Consent to venue in a county other than the county in which the residence in foreclosure is located; or
(4) Impose any costs or fees greater than the actual costs and fees.
(1) The equity purchase contract provisions required by sections 76-2719 to 76-2724 shall be provided and completed in conformity with such sections by the equity purchaser.
(2) Until the time within which the homeowner may cancel the transaction has fully elapsed, the equity purchaser shall not do any of the following:
(a) Accept from a homeowner an execution of, or induce a homeowner to execute, an instrument of conveyance of any interest in the residence in foreclosure;
(b) Record with the register of deeds any document, including, but not limited to, the equity purchase contract, or any lease, lien, or instrument of conveyance that has been signed by the homeowner;
(c) Transfer or encumber or purport to transfer or encumber an interest in the residence in foreclosure to a third party; or
(d) Pay the homeowner any consideration.
(3) Within ten days following receipt of a notice of cancellation given in accordance with sections 76-2721 and 76-2722, the equity purchaser shall return without condition the original equity purchase contract and any other documents signed by the homeowner.
(4) An equity purchaser shall not make any untrue or misleading statements of material fact regarding the value of the residence in foreclosure, the amount of proceeds the homeowner will receive after a foreclosure sale, any equity purchase contract term, the homeowner's rights or obligations incident to or arising out of the sale transaction, or the nature of any document that the equity purchaser induces the homeowner to sign or any other untrue or misleading statement concerning the sale of the residence in foreclosure to the equity purchaser.
(1) An equity purchaser or associate may not facilitate or engage in any transaction that is unconscionable given the terms and circumstances of the transaction.
(2)(a) If a court, as a matter of law, finds an equity purchase contract or any clause of such contract to have been unconscionable at the time it was made, the court may refuse to enforce the equity purchase contract, enforce the remainder of the equity purchase contract without the unconscionable clause, or so limit the application of any unconscionable clause as to avoid an unconscionable result.
(b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.
(c) In order to support a finding of unconscionability, there must be evidence of some bad faith overreaching on the part of the equity purchaser or associate such as that which results from an unreasonable inequality of bargaining power or under other circumstances in which there is an absence of meaningful choice for one of the parties, together with contract terms that are, under standard industry practices, unreasonably favorable to the equity purchaser or associate.
Any equity purchase contract, rental agreement, lease, or option or right to repurchase and any notice, conveyance, lien, encumbrance, consent, or other document or instrument signed by a homeowner shall be written in English and shall be accompanied by a written translation from English into any other language principally spoken by the homeowner, certified by the person making the translation as a true and correct translation of the English version. The translated version shall be presumed to have equal status and credibility as the English version.
A person who violates any provision of the Nebraska Foreclosure Protection Act is guilty of a Class IV felony.
Sections 76-2801 to 76-2807 shall be known and may be cited as the Nebraska Security Instrument Satisfaction Act.
For purposes of the Nebraska Security Instrument Satisfaction Act:
(1) Closing agent means a licensed title insurance agent as defined in section 44-19,108 designated by a title insurer to execute and file certificates of satisfaction pursuant to a designation of authority or a member in good standing of the Nebraska State Bar Association;
(2) Designation of authority means the designation of a title insurance agent by a title insurer, executed and acknowledged as required by law, stating (a) the name of the title insurer, (b) the name of the title insurance agent, (c) that the title insurance agent has authority to execute and record certificates of satisfaction on behalf of the title insurer, and (d) that the title insurance agent has consented to and accepts the terms of the designation;
(3) Good faith means honesty in fact and the observance of reasonable commercial standards of fair dealing;
(4) Landowner means a person that owns the real property described in a security instrument;
(5)(a) Notification or notice means:
(i) Depositing the notice in the mail or any commercially reasonable delivery service, properly addressed with postage or cost of delivery provided for;
(ii) Transmitting the notice by facsimile transmission or electronic mail to an address identified by the recipient, but only if the recipient agreed to receive notification in this manner; or
(iii) Otherwise causing the notice to be received within the time it would have been received if notification had been given by mail or commercial delivery service.
(b) Notification given under subdivision (5)(a) of this section is effective:
(i) Three days following the date that the notice is deposited in the mail or with a commercially reasonable delivery service for delivery other than by overnight delivery;
(ii) One day following the date the notice is deposited with a commercially reasonable delivery service for overnight delivery;
(iii) On the date that the secured creditor or closing agent submits electronic verification of receipt of the notice, if transmitted under subdivision (5)(a)(ii) of this section; or
(iv) On the date the notice is received, if transmitted by any other method permitted by the Nebraska Security Instrument Satisfaction Act;
(6) Payoff amount means the sum necessary to satisfy a secured obligation;
(7) Payoff statement means a statement of the amount of unpaid balance of the secured obligation containing (a) the date on which it was prepared and the payoff amount as of that date, including the amount by type of each fee, charge, or other sum included within the payoff amount, (b) the information reasonably necessary to calculate the payoff amount as of the requested payoff date, including the per diem interest, (c) the payment cutoff time, if any, (d) the address or place where payment must be made, and (e) any limitation as to the authorized method of payment;
(8) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation or government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
(9) Purchase means taking by sale, mortgage, lien, security interest, gift, or any other voluntary transaction creating an interest in real property;
(10) Purchaser means a person who takes by purchase;
(11) Record means to submit a document complying with applicable legal standards with required fees and taxes paid to the appropriate government office pursuant to Nebraska law;
(12) Residential real property means real property located in this state which is used primarily for personal, family, or household purposes and is improved by one to four dwelling units;
(13) Secured creditor means a person that holds or is the beneficiary of a security interest or that is authorized both to receive payments on behalf of a person that holds a security interest and to record a satisfaction of the security instrument upon receiving full payment or performance of the secured obligation. The term does not include a trustee under a security instrument;
(14) Secured obligation means an obligation the payment or performance of which is secured by a security interest;
(15) Security instrument means an agreement, whether denominated a mortgage, deed of trust, trust deed, or otherwise, that creates or provides for a security interest. Such an agreement is a security instrument even if it also creates or provides for a lien upon personal property;
(16) Security interest means an interest in residential real property created by a security instrument; and
(17) Title insurer means a person authorized and licensed to transact the business of insuring titles to interests in real property in this state.
(1) A secured creditor shall, after the secured creditor receives full payment or performance of the secured obligation and receives a written request by the trustor, mortgagor, or grantor, as applicable, or the trustor's, mortgagor's, or grantor's successor in interest or designated representative or by the holder of a junior trust deed, junior mortgage, or other junior security interest, record, or cause to be recorded, a deed of reconveyance or a release or satisfaction of a mortgage or other security instrument, as applicable, in the real property records of each county in which the trust deed, mortgage, or other security instrument, as applicable, is recorded. If a trust deed, mortgage, or other security instrument, as applicable, secures a line of credit or future advances, the secured obligation is fully paid or performed if, in addition to full payment or performance, the secured creditor has received a written notification from the obligor or obligors under a line of credit requesting the secured creditor to terminate the line of credit or the secured creditor has received a written notice sufficient to terminate the effectiveness of the provision for future advances as provided under section 76-238.01 or 76-1002.
(2) A secured creditor who fails to record or cause to be recorded a deed of reconveyance or a release or satisfaction of mortgage or other security instrument within sixty days after receiving full payment or performance of the secured obligation and receiving a written request as required under subsection (1) of this section is liable to (a) the trustor, mortgagor, or grantor, or the successor in interest of such trustor, mortgagor, or grantor, as applicable, if such written request was made by such trustor, mortgagor, or grantor, or a designated representative of such trustor, mortgagor, or grantor, for the greater of five thousand dollars or actual damages caused by such failure, plus reasonable attorney's fees and costs or (b) a successor in interest of the trustor, mortgagor, or grantor or of a landowner, purchaser, or holder of a junior trust deed, junior mortgage, or other junior security interest, as applicable, if such written request was made by such successor in interest of the trustor, mortgagor, or grantor, or by such landowner, purchaser, or holder of a junior trust deed, junior mortgage, or other junior security interest, for actual damages caused by such failure plus reasonable attorney's fees and costs. The court may further order the trustee to reconvey the property or the mortgagee or grantee to record a release or satisfaction of the mortgage or other security instrument. This subsection does not apply if the secured creditor received full payment or performance before July 19, 2018.
(3) A secured creditor is not liable under this section if the secured creditor (a) established a reasonable procedure to achieve compliance with its obligations under this section, (b) complied with that procedure in good faith, and (c) was unable to comply with its obligations due to circumstances beyond its control.
(4) A beneficiary under a deed of trust shall not be liable under this section if the beneficiary (a) satisfied the conditions set forth under subsection (3) of this section and (b) delivered to the trustee under such deed of trust a written request to execute a deed of reconveyance and the trustee failed to execute such deed of reconveyance, provided that the beneficiary delivered such request within the time provided herein for recording of a deed of reconveyance and the beneficiary subsequently appointed a successor trustee who executed and recorded or caused to be recorded a deed of reconveyance within a reasonable time thereafter.
(5) Successor in interest of a trustor, mortgagor, or grantor shall include the current owner of the real property and the person issuing a payoff check in accordance with the terms of a payoff letter from a beneficiary or mortgagee.
A closing agent may, on behalf of a landowner or purchaser, execute a certificate of satisfaction that complies with the requirements of the Nebraska Security Instrument Satisfaction Act and record the certificate of satisfaction in the real property records of each county in which the security instrument is recorded, if a deed of reconveyance or release or satisfaction of the security interest has not been executed and recorded within sixty days after the date (1) the secured creditor has received full payment or performance of the secured obligation in accordance with a payoff statement furnished by the secured creditor and, if applicable, notification pursuant to subsection (1) of section 76-2803 has been performed and (2) the closing agent has notified the secured creditor in accordance with section 76-2806.
(1) A certificate of satisfaction shall:
(a) Identify the original parties to the security instrument, the landowner, the secured creditor, the record holder of the security instrument, if different from the secured creditor, the recording data for the security instrument, and a legal description of the real property identified in the security instrument;
(b) State that the person executing the certificate of satisfaction is the closing agent and, if the closing agent is a title insurance agent, state the book and page or instrument number of the designation of authority by which the title insurance agent is authorized to file the certificate of satisfaction;
(c) State that the secured creditor provided a payoff statement;
(d) State that there is satisfactory evidence that the secured creditor has received full payment or performance of the sums identified in the payoff statement;
(e) State that there are reasonable grounds to believe that the real property described in the security instrument is residential real property;
(f) State that the secured creditor has failed to execute and record a deed of reconveyance or release or satisfaction of the security interest and that the closing agent has not received a notification that the secured obligation remains unsatisfied;
(g) State that sixty days have elapsed since the secured creditor received full payment or performance of the sums identified in the payoff statement and notification in accordance with section 76-2806 has been given to the secured creditor; and
(h) Be executed and acknowledged as required for a conveyance of an interest in real property.
(2) The following statutory certificate of satisfaction, when reproduced and used in the identical words or in substantially the same or a more similar than dissimilar form, shall satisfy the requirements of subsection (1) of this section:
CERTIFICATE OF SATISFACTION
The undersigned closing agent with a designation of authority recorded in book ............., page(s) ........., or as instrument ........................ of the miscellaneous records relating to real estate of .................. County, Nebraska, from a title insurer authorized to transact the business of insuring titles to interests in real property in the State of Nebraska, or a member in good standing of the Nebraska State Bar Association, hereby represents:
(a) The indebtedness secured by that certain security instrument, identified as a mortgage, trust deed, or deed of trust, executed by .............., as mortgagor/trustor, to ............., as trustee, and .............., as beneficiary or .............., as mortgagee, recorded on ....... in book ......., page(s) ......., or as Inst. No. ............ of the mortgage records of ............. County, Nebraska, and creating a security interest in the following described real estate: ................................ has received full payment or performance pursuant to a payoff statement provided to the undersigned on ................... by ....................., the holder of the underlying indebtedness, and being the secured creditor;
(b) The undersigned has satisfactory evidence that the secured creditor has received full payment or performance of the sums identified in such payoff statement;
(c) The undersigned has reasonable grounds to believe that the real property described in the security instrument is residential real property;
(d) The undersigned has not received notification that the secured obligation remains unsatisfied; and
(e) To the best knowledge of the undersigned, the secured creditor has not recorded any instrument satisfying or releasing the security interest within sixty days following (i) the secured creditor's receipt of full payment or performance and (ii) notification as required by law.
Dated: ..............., by ......................., Closing Agent.
(1) At least sixty days in advance of recording a certificate of satisfaction, a closing agent shall notify the secured creditor that the closing agent has the authority to execute and record a certificate of satisfaction of the security interest. The notification shall include:
(a) The identity and mailing address of the closing agent;
(b) Identification of the security instrument for which the recording of a deed of reconveyance or a release or satisfaction is sought, including the names of the original parties to, and the recording data for, the security instrument;
(c) A statement that the closing agent has reasonable grounds to believe that:
(i) The real property described in the security instrument is residential real property;
(ii) The person to which the notification is being given is the secured creditor; and
(iii) The closing agent has made full payment or performance of the secured obligation in accordance with a payoff statement furnished by the secured creditor either prior to or contemporaneous with the giving of the notification;
(d) A statement that the closing agent has the authority, pursuant to a designation of authority if the closing agent is a title insurance agent, to execute and record a certificate of satisfaction of the security interest unless within sixty days after notification:
(i) The secured creditor records a deed of reconveyance or a release or satisfaction of a security interest;
(ii) The closing agent receives from the secured creditor a notification stating that the secured obligation remains unsatisfied; or
(iii) The closing agent receives from the secured creditor a notification stating that the secured creditor has assigned the security instrument and identifying the name and address of the assignee; and
(e) A statement that the secured creditor will be subject to liability under section 76-252 or 76-1014.01 or the Nebraska Security Instrument Satisfaction Act.
(2) The following statutory notification, when reproduced and used in the identical words or in substantially the same or a more similar than dissimilar form, shall satisfy the requirements of subsection (1) of this section:
LENDER PAYOFF/SATISFACTION NOTIFICATION
This notification is given pursuant to the Nebraska Security Instrument Satisfaction Act by the below-named closing agent with regard to the payoff and release or satisfaction of the lien of a security instrument in which you are named the secured creditor.
(a) The closing agent is ......................... . The mailing address of the closing agent is ....................... .
(b) The security instrument that is the subject of this notification was entered into on ............ by ......................, as mortgagor/trustor(s); to ......................., as trustee, and ......................, as beneficiary or ........................, as mortgagee, recorded on ............ in book ......., page(s) .............. or as Inst. No. ........... of the mortgage records of .......................... County, Nebraska, against the following described real estate: ................................. .
(c) The closing agent has reasonable grounds to believe that:
(i) The real property described in the security instrument is residential real property;
(ii) The person to whom this notification is being given is the secured creditor; and
(iii) Full payment or performance of the secured obligation has been made in accordance with a payoff statement furnished by the secured creditor prior to or contemporaneous with the giving of this notification.
(d) The closing agent has authority, pursuant to a designation of authority if the closing agent is a title insurance agent, to execute and record a certificate of satisfaction of the security interest unless within sixty days after notification:
(i) The secured creditor records a deed of reconveyance or a release or satisfaction of the security interest;
(ii) The closing agent is notified by the secured creditor that the secured obligation remains unsatisfied; or
(iii) The closing agent receives from the secured creditor a notification stating that the secured creditor has assigned the security interest and identifying the name and address of the assignee.
(e) This notification shall constitute a written request for a deed of reconveyance of a trust deed or release or satisfaction of a mortgage pursuant to sections 76-252 and 76-1014.01. These statutes provide for liability on the part of a mortgagee or beneficiary who fails to deliver such deed of reconveyance of a trust deed or release or satisfaction of a mortgage within sixty days following such written request. Liability shall be five thousand dollars or actual damages resulting from such failure, whichever is greater, together with court costs to include reasonable attorney's fees.
Dated: ..........., by ........................., Closing Agent.
(1) A certificate of satisfaction complying with the Nebraska Security Instrument Satisfaction Act is evidence of the facts contained in it, shall be accepted for recording in the county in which the security instrument is recorded, and, upon recording, operates as a satisfaction of the security interest described in the certificate of satisfaction. If a security instrument is recorded in more than one county and a certificate of satisfaction is recorded in one of them, a certified copy of the certificate of satisfaction may be recorded in another county with the same effect as the original.
(2)(a) Except as otherwise provided in subdivision (b) of this subsection, in addition to any other remedy provided by law, a closing agent wrongfully or erroneously recording a certificate of satisfaction under this section shall be liable to the secured creditor for actual damages caused by the recording of the certificate of satisfaction and reasonable attorney's fees and costs.
(b) A closing agent that records a certificate of satisfaction of a security instrument wrongfully or erroneously is not liable if the closing agent complied in good faith with the act.
(c) If a certificate of satisfaction is executed and recorded by a title insurance agent pursuant to a designation of authority, the title insurer making such designation shall be liable to a secured creditor for the wrongful or erroneous recording of the certificate of satisfaction by such designee, to the same extent as provided under subdivisions (a) and (b) of this subsection.
(d) A single designation of authority may be recorded in the office of the register of deeds in any county in which a certificate of satisfaction may be recorded. The register of deeds shall record such designation of authority upon payment of the required fees. When the designation of authority is recorded, the register of deeds shall index such instrument under the name of the title insurance agent designated in the instrument in the manner provided for miscellaneous instruments relating to real estate. A separate designation of authority shall not be necessary for each certificate of satisfaction. Such authority shall continue until a revocation of the designation of authority is recorded in the county where the designation of authority was recorded.
(3) The recording of a certificate of satisfaction does not itself extinguish the liability of any person liable for payment of the underlying obligation.
For purposes of a bankruptcy plan under 11 U.S.C. chapter 13, a manufactured home or a mobile home shall be deemed real property under subdivision (b)(2) of 11 U.S.C. 1322, as such section existed on July 18, 2008.
For purposes of sections 76-3001 to 76-3004:
(1) Decommissioning security means a security instrument that is posted or given by a wind developer to a municipality or other governmental entity to ensure sufficient funding is available for removal of a wind energy conversion system and reclamation at the end of the useful life of such a system; and
(2) Wind agreement means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, wind easement, wind option, or lease or lease option securing land for the study or production of wind-generated energy or any other instrument executed by or on behalf of any owner of land or air space for the purpose of allowing another party to study the potential for, or to develop, a wind energy conversion system as defined in section 66-909.02 on the land or in the air space.
A wind agreement shall run with the land benefited and burdened and shall terminate upon the conditions stated in the wind agreement, except that the initial term of a wind agreement shall not exceed forty years. A wind agreement shall terminate if development of a wind energy conversion system as defined in section 66-909.02 has not commenced within ten years after the effective date of the wind agreement, except that this period may be extended by mutual agreement of the parties to the wind agreement.
A wind agreement shall comply with section 66-911.01.
No interest in any wind or solar resource located on a tract of land and associated with the production or potential production of wind or solar energy on the tract of land may be severed from the surface estate.
Sections 76-3101 to 76-3112 shall be known and may be cited as the Private Transfer Fee Obligation Act.
The Legislature finds and declares that the public policy of this state favors the marketability of real property and the transferability of interests in real property free of title defects or unreasonable restraints on alienation. The Legislature further finds and declares that private transfer fee obligations violate this public policy by impairing the marketability and transferability of real property and by constituting an unreasonable restraint on alienation regardless of the duration of the obligation to pay a private transfer fee, the amount of a private transfer fee, or the method by which any private transfer fee is created or imposed. The Legislature finds and declares that a private transfer fee obligation should not run with the title to property or otherwise bind subsequent owners of property under any common-law or equitable principle.
For purposes of the Private Transfer Fee Obligation Act, the definitions in sections 76-3104 to 76-3108 shall be used.
Environmental covenant means a servitude that imposes activity and use limitations on real property and meets the requirements of section 76-2604.
Payee means the person who claims the right to receive or collect a private transfer fee payable under a private transfer fee obligation, whether or not the person has a pecuniary interest in the private transfer fee obligation.
Private transfer fee means a fee or charge payable upon the transfer of an interest in real property, or payable for the right to make or accept such transfer, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property, the purchase price, or other consideration given for the transfer. Private transfer fee does not include:
(1) Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development, or sale of the property, if the additional consideration is payable on a one-time basis only and the obligation to make such payment does not bind successors in title to the property. For purposes of this subdivision, an interest in real property may include a separate mineral estate and its appurtenant surface access rights;
(2) Any commission payable to a licensed real estate broker or salesperson for the transfer of real property pursuant to an agreement between the broker or salesperson and the grantor or the grantee, including any subsequent additional commission for that transfer payable by the grantor or the grantee based upon any subsequent appreciation, development, or sale of the property;
(3) Any interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage or trust deed against real property, including any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage or trust deed, any fees or charges payable to the lender for estoppel letters or certificates, and any shared appreciation interest or profit participation or other consideration payable to the lender in connection with the loan;
(4) Any rent, reimbursement, charge, fee, or other amount payable by a lessee to a lessor under a lease, including any fee payable to the lessor for consenting to an assignment, subletting, encumbrance, or transfer of the lease;
(5) Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the real property to another person;
(6) Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by a governmental authority;
(7) Any fee, charge, assessment, dues, fine, contribution, or other amount payable to a homeowners, condominium, cooperative, mobile home, or property owners association pursuant to a declaration or covenant or bylaw applicable to such association, including fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent;
(8) Any fee, charge, assessment, dues, contribution, or other amount pertaining solely to the purchase or transfer of a club membership relating to real property owned by the member, including any amount determined by reference to the value, purchase price, or other consideration given for the transfer of the real property; or
(9) Any payment required pursuant to an environmental covenant.
Private transfer fee obligation means an obligation arising under a declaration or covenant recorded against the title to real property, or under any other contractual agreement or promise, whether or not recorded, that requires or purports to require the payment of a private transfer fee upon a subsequent transfer of an interest in the real property.
Transfer means sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state.
A private transfer fee obligation recorded or entered into in this state on or after March 11, 2011, does not run with the title to real property and is not binding on or enforceable at law or in equity against any subsequent owner, purchaser, mortgagee, or trustee of any interest in real property as an equitable servitude or otherwise. Any private transfer fee obligation that is recorded or entered into in this state on or after March 11, 2011, is void and unenforceable. This section shall not be construed to mean that a private transfer fee obligation recorded or entered into in this state before March 11, 2011, is presumed valid and enforceable.
Any person who records or enters into an agreement imposing a private transfer fee obligation in his or her favor after March 11, 2011, shall be liable for (1) any and all damages resulting from the imposition of the private transfer fee obligation on the transfer of an interest in the real property, including the amount of any transfer fee paid by a party to the transfer, and (2) all attorney's fees, expenses, and costs incurred by a party to the transfer or mortgagee of the real property to recover any private transfer fee paid or in connection with an action to quiet title. If an agent acts on behalf of a principal to record or secure a private transfer fee obligation, liability shall be assessed to the principal rather than the agent.
(1) Any contract for the sale of real property subject to a private transfer fee obligation shall include a provision disclosing the existence of that obligation, a description of the obligation, and a statement that private transfer fee obligations are subject to certain prohibitions under the Private Transfer Fee Obligation Act. A contract for sale of real property which does not conform to the requirements of this section shall not be enforceable by the seller against the buyer, nor shall the buyer be liable to the seller for damages under such a contract, and the buyer under such a contract shall be entitled to the return of all deposits made in connection with the sale of the real property.
(2) If a private transfer fee obligation is not disclosed under subsection (1) of this section and a buyer subsequently discovers the existence of such private transfer fee obligation after title to the property has passed to the buyer, the buyer shall have the right to recover (a) any and all damages resulting from the failure to disclose the private transfer fee obligation, including the amount of any private transfer fee paid by the buyer, or the difference between (i) the market value of the real property if it were not subject to a private transfer fee obligation and (ii) the market value of the real property as subject to a private transfer fee obligation, and (b) all attorney's fees, expenses, and costs incurred by the buyer in seeking the buyer's remedies under this subsection.
(3) Any provision in a contract for sale of real property that purports to waive the rights of a buyer under this section shall be void.
(1) For a private transfer fee obligation in existence prior to March 11, 2011, the receiver of the fee shall, within thirty days after March 11, 2011, or before any transfer of real property subject to the private transfer fee, whichever period is shorter, record against the real property subject to the private transfer fee obligation a separate document in the register of deeds office of the county in which the real property is located that meets all of the following requirements:
(a) The title of the document shall be "Notice of Private Transfer Fee Obligation" in at least fourteen-point, boldface type;
(b) The amount, if the private transfer fee is a flat amount, or the percentage of the sales price constituting the cost of the private transfer fee, or such other basis by which the private transfer fee is to be calculated;
(c) The date or circumstances under which the private transfer fee obligation expires, if any;
(d) The purpose for which the funds from the private transfer fee obligation will be used;
(e) The name of the person to whom funds are to be paid and specific contact information regarding where the funds are to be sent;
(f) The acknowledged signature of the payee; and
(g) The legal description of the real property purportedly burdened by the private transfer fee obligation.
(2) The person to whom the private transfer fee is to be paid may file an amendment to the notice of private transfer fee obligation containing new contact information, but such amendment must contain the recording information of the notice of private transfer fee obligation which it amends and the legal description of the property burdened by the private transfer fee obligation.
(3) If the payee fails to comply fully with subsection (1) of this section, the grantor of any real property burdened by the private transfer fee obligation may proceed with the transfer of any interest in the real property to any grantee and in so doing shall be deemed to have acted in good faith and shall not be subject to any obligations under the private transfer fee obligation. In such event, any transfer of the real property thereafter shall be free and clear of the private transfer fee and private transfer fee obligation.
(4) If the payee fails to provide a written statement of the private transfer fee payable within thirty days after the date of a written request for the same sent to the address shown in the notice of private transfer fee obligation, then the grantor, on recording of the affidavit required under subsection (5) of this section, may transfer any interest in the real property to any grantee without payment of the private transfer fee and shall not be subject to any further obligations under the private transfer fee obligation. In such event, any transfer of the real property shall be free and clear of the private transfer fee and private transfer fee obligation.
(5) An affidavit stating the facts enumerated under subsection (6) of this section shall be recorded in the office of the register of deeds in the county in which the real property is situated prior to or simultaneously with a transfer pursuant to subsection (4) of this section of real property unburdened by a private transfer fee obligation. An affidavit filed under this subsection shall state that the affiant has actual knowledge of, and is competent to testify to, the facts in the affidavit and shall include the legal description of the real property burdened by the private transfer fee obligation, the name of the owner of such real property at the time of the signing of such affidavit, a reference by recording information to the instrument of record containing the private transfer fee obligation, and an acknowledgment that the affiant is testifying under penalty of perjury.
(6) When recorded, an affidavit as described in subsection (5) of this section shall constitute prima facie evidence that:
(a) A request for the written statement of the private transfer fee payable in order to obtain a release of the fee imposed by the private transfer fee obligation was sent to the address shown in the notification; and
(b) The entity listed on the notice of private transfer fee obligation failed to provide the written statement of the private transfer fee payable within thirty days after the date of the notice sent to the address shown in the notification.
Sections 76-3201 to 76-3223 shall be known and may be cited as the Nebraska Appraisal Management Company Registration Act.
For purposes of the Nebraska Appraisal Management Company Registration Act:
(1) Affiliate means any person that controls, is controlled by, or is under common control with, another person;
(2) AMC appraiser means a person who holds a valid credential or equivalent to appraise real estate and real property under the laws of this state or another jurisdiction, and holds the status of active on the Appraiser Registry of the Appraisal Subcommittee of the Federal Financial Institutions Examination Council in one or more jurisdictions;
(3) AMC Registry means the registry of appraisal management companies that hold a registration as an appraisal management company issued by the board or the equivalent issued in another jurisdiction, and federally regulated appraisal management companies, maintained by the Appraisal Subcommittee;
(4) AMC rule means, collectively, the rules adopted by the federal agencies as required in section 1124 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as such rules existed on January 1, 2024;
(5) Appraisal has the same meaning as in section 76-2204;
(6) Appraisal management company means a person that:
(a) Provides appraisal management services to creditors or to secondary mortgage market participants, including affiliates;
(b) Provides appraisal management services in connection with valuing a consumer's principal dwelling as security for a consumer credit transaction or incorporating such transactions into securitizations; and
(c) Within a twelve-month period, oversees an appraiser panel of:
(i) More than fifteen AMC appraisers in this state; or
(ii) Twenty-five or more AMC appraisers in two or more jurisdictions;
(7) Appraisal management services means one or more of the following:
(a) To recruit, select, and retain AMC appraisers;
(b) To contract with AMC appraisers to perform assignments;
(c) To manage the process of having an appraisal performed, including providing administrative services such as receiving appraisal orders and reports, submitting completed reports to creditors and secondary mortgage market participants, collecting fees from creditors and secondary mortgage market participants for services provided, and paying AMC appraisers for valuation services performed; or
(d) To review and verify the work of AMC appraisers;
(8) Appraisal Subcommittee means the Appraisal Subcommittee of the Federal Financial Institutions Examination Council;
(9) Appraiser panel means a network, list, or roster of AMC appraisers approved by an appraisal management company to perform appraisals as independent contractors for the appraisal management company;
(10) Assignment has the same meaning as in section 76-2207.01;
(11) Board has the same meaning as in section 76-2207.18;
(12) Consumer credit means credit offered or extended to a consumer primarily for personal, family, or household purposes;
(13) Contact person means a person designated by the appraisal management company as the main contact for all communication between the appraisal management company and the board;
(14) Covered transaction means any consumer credit transaction secured by the consumer's principal dwelling;
(15) Credential has the same meaning as in section 76-2207.25;
(16) Creditor means a person who regularly extends consumer credit that is subject to a finance charge or is payable by written agreement in more than four installments, not including a downpayment, and to whom the obligation is initially payable, either on the face of the note or contract or by agreement when there is no note or contract. A person regularly extends consumer credit if:
(a) The person extended credit, other than credit subject to the requirements of 12 C.F.R. 1026.32, as such regulation existed on January 1, 2019, more than five times for transactions secured by a dwelling in the preceding calendar year, or in the current calendar year if a person did not meet these standards in the preceding calendar year; and
(b) In any twelve-month period, the person originates more than one credit extension that is subject to the requirements of 12 C.F.R. 1026.32, as such regulation existed on January 1, 2019, or one or more such credit extensions through a mortgage broker;
(17) Dwelling means a residential structure that contains one to four units, whether or not that structure is attached to real property, including an individual condominium unit, cooperative unit, mobile home, or trailer if used as a residence. With respect to a dwelling:
(a) A consumer may have only one principal dwelling at a time;
(b) A vacation or secondary dwelling is not a principal dwelling; and
(c) A dwelling bought or built by a consumer with the intention of that dwelling becoming the consumer's principal dwelling within one year, or upon completion of construction, is considered to be the consumer's principal dwelling for the purpose of the Nebraska Appraisal Management Company Registration Act;
(18) Federally regulated appraisal management company means an appraisal management company that is:
(a) Owned and controlled by an insured depository institution as defined in 12 U.S.C. 1813, as such section existed on January 1, 2024; and
(b) Regulated by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the successor of any such agencies;
(19) Federal agencies means the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, the Consumer Financial Protection Bureau, the Federal Housing Finance Agency, or the successor of any of such agencies;
(20) Financial Institutions Reform, Recovery, and Enforcement Act of 1989 has the same meaning as in section 76-2207.30;
(21) Independent contractor means a person established as an independent contractor by the appraisal management company for the purpose of federal income taxation;
(22) Jurisdiction has the same meaning as in section 76-2207.32;
(23) Person has the same meaning as in section 76-2213.02;
(24) Real estate has the same meaning as in section 76-2214;
(25) Real property has the same meaning as in section 76-2214.01;
(26) Real property appraisal practice has the same meaning as in section 76-2215;
(27) Real property appraiser has the same meaning as in section 76-2216;
(28) Registration means a registration as an appraisal management company in this state issued by the board if all requirements for approval as an appraisal management company required in the Nebraska Appraisal Management Company Registration Act have been met by a person making application to the board, including the submission of all required fees, and the board has granted all rights to the person to operate as an appraisal management company in this state as allowed under the act;
(29) Report has the same meaning as in section 76-2216.02;
(30) Secondary mortgage market participant means a guarantor or insurer of mortgage-backed securities, or an underwriter or issuer of mortgage-backed securities, and only includes an individual investor in a mortgage-backed security if that investor also serves in the capacity of a guarantor, insurer, underwriter, or issuer for the mortgage-backed security;
(31) Uniform Standards of Professional Appraisal Practice has the same meaning as in section 76-2218.02; and
(32) Valuation services has the same meaning as in section 76-2219.01.
(1) An application for issuance of a registration shall be made in writing to the board on forms approved by the board, which includes, but is not limited to, all information required by the board necessary to administer and enforce the Nebraska Appraisal Management Company Registration Act, and the name of the contact person for the appraisal management company.
(2) An applicant for issuance of a registration shall furnish to the board, at the time of making application, a surety bond in the amount of twenty-five thousand dollars. The surety bond required under this subsection shall be issued by a bonding company or insurance company authorized to do business in this state, and a copy of the bond shall be filed with the board. The bond shall be in favor of the state for the benefit of any person who is damaged by any violation of the Nebraska Appraisal Management Company Registration Act. The bond shall also be in favor of any person damaged by such a violation. Any person claiming against the bond for a violation of the act may maintain an action at law against the appraisal management company and against the surety. The aggregate liability of the surety to all persons damaged by a violation of the act by an appraisal management company shall not exceed the amount of the bond. The bond shall be maintained until one year after the date that the appraisal management company ceases operation in this state.
(3) A registration shall be issued only to persons who:
(a) Meet the requirements for issuance of a registration;
(b) Have a good reputation for honesty, trustworthiness, integrity, and competence to perform appraisal management services in such manner as to safeguard the interest of the public as determined by the board; and
(c) Have not had a final civil or criminal judgment entered against them for fraud, dishonesty, breach of trust, or misrepresentation involving real estate, financial services, or appraisal management services within a five-year period immediately preceding the date of application.
(4) A registration shall be valid for a period of twelve months beginning on the date which the registration was issued or renewed unless canceled, revoked, or surrendered.
(5) All information related to an appraisal management company's registration shall be reported to the Appraisal Subcommittee as required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the AMC rule, and any policy or rule established by the Appraisal Subcommittee.
(6) The renewal of a registration includes the same requirements found in subsections (1) through (5) of this section. An application for renewal of a registration shall be furnished to the board no later than sixty days prior to the date of expiration of the registration.
(7) For the purpose of subdivision (6) of section 76-3202, the twelve-month period for renewal of a registration shall consist of the twelve months pursuant to subsection (4) of this section.
(1) Only AMC appraisers considered to be in good standing in all jurisdictions in which an active credential is held shall be included on an appraisal management company's appraiser panel.
(2) An appraisal management company shall remove any AMC appraiser from its appraiser panel within thirty days after receiving notice that the AMC appraiser:
(a) Is no longer considered to be in good standing in one or more jurisdictions in which he or she holds an active credential or equivalent;
(b) The AMC appraiser's credential or equivalent has been refused, denied, canceled, or revoked; or
(c) The AMC appraiser has surrendered his or her credential or equivalent in lieu of revocation.
(3) Pursuant to subdivision (6)(c) of section 76-3202, an appraiser panel shall include each AMC appraiser as of the earliest date on which such person was accepted by the appraisal management company:
(a) For consideration for future assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions; or
(b) For engagement to perform one or more appraisals on behalf of a creditor for a covered transaction or for a secondary mortgage market participant in connection with covered transactions.
(4) Any AMC appraiser included on an appraisal management company's appraiser panel pursuant to subsection (3) of this section shall remain on such appraiser panel until the date on which the appraisal management company:
(a) Sends written notice to the AMC appraiser removing him or her from the appraiser panel. Such written notice shall include an explanation of the action taken by the appraisal management company;
(b) Receives written notice from the AMC appraiser requesting that he or she be removed from the appraiser panel. Such written notice shall include an explanation of the action requested by the AMC appraiser; or
(c) Receives written notice on behalf of the AMC appraiser of the death or incapacity of the AMC appraiser. Such written notice shall include an explanation on behalf of the AMC appraiser.
(5) Upon receipt of notice that he or she has been removed from the appraisal management company's appraiser panel, an AMC appraiser shall have thirty days to provide a response to the appraisal management company that removed the AMC appraiser from its appraiser panel. Upon receipt of the AMC appraiser's response, the appraisal management company shall have thirty days to reconsider the removal and provide a written response to the AMC appraiser.
(6) If an AMC appraiser is removed from an appraisal management company's appraiser panel pursuant to subsection (4) of this section, nothing shall prevent the appraisal management company at any time during the twelve months after removal from the appraiser panel from considering such person for future assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions, or for engagement to perform one or more appraisals on behalf of a creditor for a covered transaction or for a secondary mortgage market participant in connection with covered transactions. If such consideration or engagement takes place, the removal shall be deemed not to have occurred and such person shall be deemed to have been included on the appraiser panel without interruption.
(7) Any AMC appraiser included on an appraisal management company's appraiser panel engaged in real property appraisal practice as a result of an assignment provided by an appraisal management company shall be free from inappropriate influence and coercion as required by the appraisal independence standards established under section 129E of the federal Truth in Lending Act, as such section existed on January 1, 2018, including the requirements for payment of a reasonable and customary fee to AMC appraisers when the appraisal management company is engaged in providing appraisal management services.
(8) An appraisal management company shall select an AMC appraiser from its appraiser panel for an assignment who is independent of the transaction and who has the requisite education, expertise, and experience necessary to competently complete the assignment for the particular market and property type.
(1) A federally regulated appraisal management company must report all information required to be submitted to the Appraisal Subcommittee pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the AMC rule, and any policy or rule established by the Appraisal Subcommittee related to its operation in this state, including, but not limited to, the collection of information related to ownership limitations.
(2) The board may collect and transmit to the Appraisal Subcommittee any fees established by the Appraisal Subcommittee pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the AMC rule, and any policy or rule established by the Appraisal Subcommittee required for inclusion on the AMC Registry, and collect any fees as deemed appropriate by the board for services provided as related to a federally regulated appraisal management company's operation in this state.
(3) Nothing in the Nebraska Appraisal Management Company Registration Act shall prevent issuance by the board of a registration to a federally regulated appraisal management company.
(4) Except for a federally regulated appraisal management company that holds a registration issued by the board, section 76-3202, and this section, a federally regulated appraisal management company is exempt from the Nebraska Appraisal Management Company Registration Act.
The Nebraska Appraisal Management Company Registration Act does not apply to:
(1) A department or division of a person that provides appraisal management services only to itself; or
(2) A person that provides appraisal management services but does not meet the requirement established by subdivision (6)(c) of section 76-3202.
Each appraisal management company that holds a registration but is not domiciled in this state shall submit an irrevocable consent that service of process upon such person may be made by delivery of the process to the director of the board if the plaintiff cannot, in the exercise of due diligence, effect personal service upon the person in an action against the applicant in a court of this state arising out of the person's activities in this state.
(1) The board shall charge and collect fees for its services under the Nebraska Appraisal Management Company Registration Act as follows:
(a) An application fee of no more than three hundred fifty dollars;
(b) An initial registration fee of no more than two thousand dollars;
(c) A renewal registration fee of no more than two thousand dollars; and
(d) A late renewal processing fee of twenty-five dollars for each month or portion of a month the renewal registration fee is late.
(2) The board may collect and transmit to the Appraisal Subcommittee any fees established by the Appraisal Subcommittee under Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the AMC rule, and any policy or rule established by the Appraisal Subcommittee required for inclusion on the AMC Registry.
(1) A person applying for issuance of a registration or renewal of a registration shall not:
(a) In whole or in part, directly or indirectly, be owned by any person who has had a real property appraiser credential or equivalent refused, denied, canceled, or revoked or who has surrendered a real property appraiser credential or equivalent in lieu of revocation in any jurisdiction for a substantive cause as determined by the board; and
(b) Be more than ten percent owned by a person who is not of good moral character, which for purposes of this section shall require that such person has not been convicted of, or entered a plea of nolo contendere to, a felony relating to the real property appraisal practice or any crime involving fraud, misrepresentation, or moral turpitude or failed to submit to a criminal history record check through the Nebraska State Patrol and the Federal Bureau of Investigation.
(2) For purposes of subdivision (1)(b) of this section, each individual owner of more than ten percent of an appraisal management company shall:
(a) At the time an application for issuance of a registration is made, submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation;
(b) At the time an application for renewal of a registration is made, submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation if a fingerprint-based national criminal history records check has not been completed pursuant to subdivision (2)(a) of this section; and
(c) At the time an individual owner of more than ten percent of an appraisal management company is identified by the board, submit two copies of legible ink-rolled fingerprint cards or equivalent electronic fingerprint submissions to the board for delivery to the Nebraska State Patrol in a form approved by both the Nebraska State Patrol and the Federal Bureau of Investigation if a fingerprint-based national criminal history records check has not been completed pursuant to subdivision (2)(a) or (2)(b) of this section.
(3) The board shall pay the Nebraska State Patrol the costs associated with conducting a fingerprint-based national criminal history record check through the Nebraska State Patrol and the Federal Bureau of Investigation with such record check to be carried out by the board.
(4) For the purpose of subdivision (1)(a) of this section, a person is not barred from issuance of a registration if the real property appraiser credential or equivalent of the person with an ownership interest was not refused, denied, canceled, revoked, or surrendered in lieu of revocation for a substantive cause as determined by the board and has been reinstated by the jurisdiction in which the action was taken.
(1) An appraisal management company shall not prohibit an AMC appraiser from including within the body of a report that is submitted by the AMC appraiser to the appraisal management company or its assignee the fee agreed upon between the appraisal management company and the AMC appraiser at the time of engagement for the performance of the appraisal.
(2) An appraisal management company shall not directly or indirectly engage in or attempt to engage in business as an appraisal management company or advertise or hold itself out as engaging in or conducting business as an appraisal management company in this state under any legal name or trade name not included in the application for issuance of a registration, or renewal of a registration, as approved by the board.
(3) An appraisal management company shall not require an AMC appraiser to indemnify an appraisal management company or hold an appraisal management company harmless for any liability, damage, losses, or claims arising out of the appraisal management services provided by the appraisal management company.
Any employee of or independent contractor to an appraisal management company that holds a registration, including any AMC appraiser included on an appraisal management company's appraiser panel engaged in real property appraisal practice, shall comply with the Real Property Appraiser Act, including the Uniform Standards of Professional Appraisal Practice.
Each appraisal management company that holds a registration shall maintain a detailed record of appraisal management services provided under its registration, and upon request shall submit to the board all books, records, reports, documents, and other information as deemed appropriate by the board to administer and enforce the Nebraska Appraisal Management Company Registration Act. Record retention requirements are for a period of five years after appraisal management services are completed or two years after final disposition of a judicial proceeding related to the appraisal management services, whichever period expires later.
An appraisal management company that holds a registration may not alter, modify, or otherwise change a completed report submitted by an AMC appraiser without his or her written consent.
(1) The board shall issue a unique registration number to each appraisal management company that holds a registration.
(2) The board shall maintain a published list of the appraisal management companies that hold registrations and have been issued a registration number pursuant to subsection (1) of this section.
(3) An appraisal management company that holds a registration shall disclose the registration number provided to it by the board on the engagement documents presented to the AMC appraiser.
Each appraisal management company that holds a registration, except in cases of noncompliance with the conditions of the engagement, shall make payment of fees to an AMC appraiser engaged by the appraisal management company to perform one or more appraisals on behalf of a creditor for a covered transaction or for a secondary mortgage market participant in connection with covered transactions within sixty days after the date on which the AMC appraiser transmits or otherwise provides the report to the appraisal management company or its assignee.
(1) It is unlawful for a person to directly or indirectly engage in or attempt to engage in business as an appraisal management company or to advertise or hold itself out as engaging in or conducting business as an appraisal management company in this state without first obtaining a registration or by meeting the requirements as a federally regulated appraisal management company.
(2) Except as provided in section 76-3204, any person who, directly or indirectly for another, offers, attempts, or agrees to perform all actions described in subdivision (6) of section 76-3202 or any action described in subdivision (7) of such section, shall be deemed an appraisal management company within the meaning of the Nebraska Appraisal Management Company Registration Act, and such action shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such person in any action arising out of the act.
(3) The board may issue a cease and desist order against any person who violates this section by performing any action described in subdivision (6) or (7) of section 76-3202 without the appropriate registration. Such order shall be final ten days after issuance unless such person requests a hearing pursuant to section 76-3217. The board may, through the Attorney General, obtain an order from the district court for the enforcement of the cease and desist order.
(4) To the extent permitted by any applicable federal legislation or regulation, the board may censure an appraisal management company, conditionally or unconditionally suspend or revoke its registration, or levy fines or impose civil penalties not to exceed five thousand dollars for a first offense and not to exceed ten thousand dollars for a second or subsequent offense, if the board determines that an appraisal management company is attempting to perform, has performed, or has attempted to perform any of the following:
(a) A material violation of the act;
(b) A violation of any rule or regulation adopted and promulgated by the board; or
(c) Procurement of a registration for itself or any other person by fraud, misrepresentation, or deceit.
(5) In order to promote voluntary compliance, encourage appraisal management companies to correct errors promptly, and ensure a fair and consistent approach to enforcement, the board shall endeavor to impose fines or civil penalties that are reasonable in light of the nature, extent, and severity of the violation. The board shall also take action against an appraisal management company's registration only after less severe sanctions have proven insufficient to ensure behavior consistent with the Nebraska Appraisal Management Company Registration Act. When deciding whether to impose a sanction permitted by subsection (4) of this section, determining the sanction that is most appropriate in a specific instance, or making any other discretionary decision regarding the enforcement of the act, the board shall consider whether an appraisal management company:
(a) Has an effective program reasonably designed to ensure compliance with the act;
(b) Has taken prompt and appropriate steps to correct and prevent the recurrence of any detected violations; and
(c) Has independently reported to the board any significant violations or potential violations of the act prior to an imminent threat of disclosure or investigation and within a reasonably prompt time after becoming aware of the occurrence of such violations.
(6) Any violation of appraisal-related laws or rules and regulations, and disciplinary action taken against an appraisal management company, shall be reported to the Appraisal Subcommittee as required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the AMC rule, and any policy or rule established by the Appraisal Subcommittee.
(1) The board shall conduct disciplinary hearings for any violation of the Nebraska Appraisal Management Company Registration Act in accordance with the Administrative Procedure Act.
(2) Before the board may censure, suspend, or revoke the registration of, or levy a fine or civil penalty against, an appraisal management company, the board shall notify the appraisal management company in writing of any charges made under the Nebraska Appraisal Management Company Registration Act at least twenty days prior to the date set for the hearing and shall permit the appraisal management company an opportunity to be heard in person or by counsel. The notice shall be satisfied by personal service on the contact person of the appraisal management company or agent for service of process in this state or by sending the notice by certified mail, return receipt requested, to the address of the contact person of the appraisal management company that is on file with the board.
(3) Any hearing pursuant to this section shall be heard by a hearing officer at a time and place prescribed by the board. The hearing officer may make findings of fact and shall deliver such findings to the board. The board shall take such disciplinary action as it deems appropriate, subject to the limitations contained within section 76-3216. Costs incurred for an administrative hearing, including fees of counsel, the hearing officer, court reporters, investigators, and witnesses, shall be taxed as costs in such action as the board may direct.
The board may adopt and promulgate rules and regulations not inconsistent with the Nebraska Appraisal Management Company Registration Act which may be reasonably necessary to implement, administer, and enforce the provisions of the act.
The board shall collect all fees and other revenue pursuant to the Nebraska Appraisal Management Company Registration Act and shall remit such fees and revenue to the State Treasurer for credit to the Appraisal Management Company Fund, which is hereby created. The fund shall be used to implement, administer, and enforce the act. Any money in the 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.
An appraisal management company that has a reasonable basis to believe that an AMC appraiser has failed to comply with applicable laws or the Uniform Standards of Professional Appraisal Practice shall refer the matter to the board if the failure to comply is material.
At the request of the board, the Attorney General shall render an opinion with respect to all questions of law arising in connection with the administration of the Nebraska Appraisal Management Company Registration Act and shall act as attorney for the board in all actions and proceedings brought by or against the board under or pursuant to the act. All fees and expenses of the Attorney General arising out of such duties shall be paid out of the Appraisal Management Company Fund. The Attorney General may appoint special counsel to prosecute such action, and all allowed fees and expenses of such counsel shall be taxed as costs in the action as the court may direct.
Whenever, in the judgment of the board, any person has engaged in or is about to engage in any acts or practices which constitute or will constitute a violation of the Nebraska Appraisal Management Company Registration Act, the Attorney General may maintain an action in the name of the State of Nebraska in the district court of the county in which such violation or threatened violation occurred to abate and temporarily and permanently enjoin such acts and practices and to enforce compliance with the act. The Attorney General shall not be required to give any bond nor shall any court costs be adjudged against the Attorney General.
Any member of the board, employee of the board, or person under contract with the board shall be immune from any civil action or criminal prosecution for initiating or assisting in any lawful investigation of the actions of or any disciplinary proceeding concerning an appraisal management company pursuant to the Nebraska Appraisal Management Company Registration Act if the member, employee, or person initiates or assists in such investigation or proceeding without malicious intent and in the reasonable belief that the investigation or proceeding was allowed by the powers vested in such member, employee, or person.
Sections 76-3301 to 76-3308 shall be known and may be cited as the Oil Pipeline Reclamation Act.
For purposes of the Oil Pipeline Reclamation Act:
(1) Oil means petroleum of any kind or in any form, including crude oil or any fraction of crude oil;
(2) Pipeline carrier means a person that engages in owning, operating, or managing a pipeline or part of a pipeline for the transportation of oil but does not include an entity under the jurisdiction of the Nebraska Oil and Gas Conservation Commission for in-field flow-lines and gathering lines;
(3) Reclamation means restoration of the areas through which a pipeline is constructed as close as reasonably practicable to the condition, contour, and vegetation that existed prior to construction; and
(4) Reclamation costs include, but are not limited to, the costs of restoration of real and personal property, the costs of restoration of natural resources, the costs of rehabilitation of habitat or wildlife, and the costs of revegetation.
(1) The purpose of the Oil Pipeline Reclamation Act is to ensure that a pipeline carrier which owns, constructs, operates, or manages a pipeline through this state for the transportation of oil is financially responsible for reclamation costs relating to the construction, operation, and management of the pipeline in this state as prescribed in the act.
(2) It is the intent of the Legislature that proper reclamation is accomplished as part of the oil pipeline construction process, including restoration of areas through which a pipeline is constructed as close as reasonably practicable to the condition, contour, and vegetation that existed prior to construction, including stabilizing disturbed areas, establishing a diverse plant environment of native grasses and forbs to create a safe and stable landscape, restoring active cropland to its previous productive capability, mitigating noxious weeds, and managing invasive plants, unless otherwise agreed to by the landowner.
(1) A pipeline carrier owning, operating, or managing a pipeline or part of a pipeline for the transportation of oil in this state shall be responsible for all reclamation costs necessary as a result of constructing the pipeline as well as reclamation costs resulting from operating the pipeline, except to the extent another party is determined to be responsible.
(2) The pipeline carrier shall commence reclamation of the area through which a pipeline is constructed as soon as reasonably practicable after backfill as provided in sections 76-3307 and 76-3308.
(3) A pipeline carrier's obligation for reclamation and maintenance of the pipeline right-of-way shall continue until the pipeline is permanently decommissioned or removed.
Nothing in the Oil Pipeline Reclamation Act prohibits a state agency, county board, city council, or village board from pursuing reclamation costs for the maintenance and repair of roads, bridges, or other infrastructure related to the construction, maintenance, or operation of a pipeline by a pipeline carrier who is subject to the act.
The Oil Pipeline Reclamation Act provides the minimum standards to be met by a pipeline carrier. The act is not meant to affect the obligations of a pipeline carrier provided for in a negotiated agreement with a landowner and is not to affect the duties of a pipeline carrier under applicable federal law or permits.
A pipeline carrier shall complete final grading, topsoil replacement, installation of erosion control structures, seeding, and mulching within thirty days after backfill except when weather conditions, extenuating circumstances, or unforeseen developments do not permit the work to be done within such thirty-day period.
(1) A pipeline carrier shall ensure that all reclamation, including, but not limited to, choice of seed mixes, method of reseeding, and weed and erosion control measures and monitoring, is conducted in accordance with the Federal Seed Act, 7 U.S.C. 1551 et seq., the Nebraska Seed Law, and the Noxious Weed Control Act.
(2) A pipeline carrier shall ensure that genetically appropriate and locally adapted native plant materials and seeds are used based on site characteristics and surrounding vegetation as determined by a preconstruction site inventory.
(3) A pipeline carrier shall ensure that mulch is installed as required by site contours, seeding methods, or weather conditions or when requested by a landowner.
Sections 76-3401 to 76-3423 shall be known and may be cited as the Nebraska Uniform Real Property Transfer on Death Act.
For purposes of the Nebraska Uniform Real Property Transfer on Death Act:
(1) Beneficiary means a person that receives property under a transfer on death deed;
(2) Designated beneficiary means a person designated to receive property in a transfer on death deed;
(3) Disinterested witness to a transfer on death deed means any individual who acts as a witness to a transfer on death deed at the date of its execution and who is not a designated beneficiary or an heir, a child, or a spouse of a designated beneficiary;
(4) Joint owner means an individual who owns property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant. The term does not include a tenant in common without a right of survivorship;
(5) Person means an individual, a corporation, an estate, a trustee of a trust, a partnership, a limited liability company, an association, a joint venture, a public corporation, a government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
(6) Property means an interest in real property located in this state which is transferable on the death of the owner;
(7) Transfer on death deed means a deed authorized under the Nebraska Uniform Real Property Transfer on Death Act; and
(8) Transferor means an individual who makes a transfer on death deed.
The Nebraska Uniform Real Property Transfer on Death Act applies to a transfer on death deed made before, on, or after January 1, 2013, by a transferor dying on or after January 1, 2013. A transfer on death deed is subject to the common-law principles of equity except to the extent modified by the Nebraska Uniform Real Property Transfer on Death Act.
The Nebraska Uniform Real Property Transfer on Death Act does not affect any method of transferring property otherwise permitted under the law of this state.
An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed. If the property is agricultural land, the transferor may designate in the transfer on death deed the disposition of the transferor's interest in growing crops to the transferor's estate or to one or more of the designated beneficiaries. If the property is agricultural land and the transfer on death deed does not contain a designation of the disposition of the transferor's interest in growing crops, the transferor's interest in the growing crops shall pass to the transferor's estate.
A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.
A transfer on death deed is nontestamentary.
The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.
A transfer on death deed shall be signed by the transferor or by some person in his or her presence and by his or her direction and shall be attested in writing by two or more disinterested witnesses, whose signatures along with the transferor's signature shall be made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in form and content substantially as follows:
I, .......... the transferor, sign my name to this instrument this ..... day of ..... 20 ....., and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this transfer on death deed to transfer my interest in the described real property and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed, that I am eighteen years of age or older or am not at this time a minor, and that I am of sound mind and under no constraint or undue influence.
Transferor ..............
We, ...... and ......, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the transferor signs and executes this transfer on death deed to transfer his or her interest in the described real property and that he or she signs it willingly or willingly directs another to sign for him or her, and that he or she executes it as his or her free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the transferor, hereby signs this deed as witness to the transferor's signing, and that to the best of his or her knowledge the transferor is eighteen years of age or older or is not at this time a minor and the transferor is of sound mind and under no constraint or undue influence.
Witness ..........
Witness ..........
THE STATE OF ....................
COUNTY OF ....................
Subscribed, sworn to, and acknowledged before me by .........., the transferor, and subscribed and sworn to before me by .......... and ..........., witnesses, this ..... day of ..... 20..... .
(SEAL)(Signed) .....................
(Official capacity of officer) ....................
(a) A transfer on death deed:
(1) Except as otherwise provided in subdivision (2) of this subsection, must contain the essential elements and formalities of a properly recordable inter vivos deed;
(2) Must state that the transfer to the designated beneficiary is to occur at the transferor's death;
(3) Must contain the warnings provided in subsection (b) of this section; and
(4) Must be recorded (i) within thirty days after being executed as required in section 76-3409, (ii) before the transferor's death, and (iii) in the public records in the office of the register of deeds of the county where the property is located.
(b)(1) A transfer on death deed shall contain the following warnings:
WARNING: The property transferred remains subject to inheritance taxation in Nebraska to the same extent as if owned by the transferor at death. Failure to timely pay inheritance taxes is subject to interest and penalties as provided by law.
WARNING: The designated beneficiary is personally liable, to the extent of the value of the property transferred, to account for medicaid reimbursement to the extent necessary to discharge any such claim remaining after application of the assets of the transferor's estate. The designated beneficiary may also be personally liable, to the extent of the value of the property transferred, for claims against the estate, statutory allowances to the transferor's surviving spouse and children, and the expenses of administration to the extent needed to pay such amounts by the personal representative.
WARNING: The Department of Health and Human Services may require revocation of this deed by a transferor, a transferor's spouse, or both a transferor and the transferor's spouse in order to qualify or remain qualified for medicaid assistance.
(2) No recorded transfer on death deed shall be invalidated because of any defects in the wording of the warnings required by this subsection.
(c) No action may be commenced to set aside a transfer on death deed, based on failure to comply with the requirement of disinterested witnesses pursuant to section 76-3409, more than ninety days after the date of death of the transferor or, if there is more than one transferor, more than ninety days after the date of death of the last surviving transferor.
(d) Notwithstanding subsection (c) of this section, an action to set aside a transfer on death deed, based on failure to comply with the requirement of disinterested witnesses pursuant to section 76-3409, in which the transferor or, if there is more than one transferor, the last surviving transferor, has died prior to May 8, 2013, shall be commenced by the later of (1) ninety days after the date of death of the transferor or, if there is more than one transferor, ninety days after the date of death of the last surviving transferor, or (2) ninety days after May 8, 2013.
A transfer on death deed is effective without:
(1) Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
(2) Consideration.
A completed statement as provided in subdivision (2)(a) of section 76-214 must be filed at the time that the conveyance of real estate transferred by a transfer on death deed becomes effective due to the death of the transferor or the death of a surviving joint tenant of the transferor.
(a) Subject to subsection (b) of this section, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:
(1) Is one of the following:
(A) A transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;
(B) An instrument of revocation that expressly revokes the deed or part of the deed and that is executed with the same formalities as required in section 76-3409;
(C) An inter vivos deed that expressly or by inconsistency revokes the transfer on death deed or part of the deed; or
(D) An inter vivos deed to a bona fide purchaser that expressly or by inconsistency revokes the transfer on death deed or part of the deed; and
(2) Is an instrument under subdivisions (1)(A), (B), and (C) of this subsection that is acknowledged by the transferor after the acknowledgment of the deed being revoked and is recorded before the transferor's death. For any instrument under subdivision (1)(D) of this subsection, such instrument must be acknowledged by the transferor after the acknowledgment of the deed being revoked and must be recorded before the later of thirty days after being executed or the transferor's death. Any instrument under this subsection shall be recorded in the public records in the office of the register of deeds of the county where the deed being revoked is recorded.
(b) If a transfer on death deed is made by more than one transferor:
(1) Revocation by a transferor does not affect the deed as to the interest of another transferor; and
(2) A deed of joint owners is revoked only if it is revoked by all of the living joint owners who were transferors.
(c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.
(d) This section does not limit the effect of an inter vivos transfer of the property.
(e) A bona fide purchaser is a purchaser for value in good faith and without notice of any adverse claim.
During a transferor's life, a transfer on death deed does not:
(1) Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;
(2) Affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;
(3) Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;
(4) Affect the transferor's or designated beneficiary's eligibility for any form of public assistance except to the extent provided in section 76-3421;
(5) Create a legal or equitable interest in favor of the designated beneficiary; or
(6) Subject the property to claims or process of a creditor of the designated beneficiary.
(a) Except as otherwise provided in the transfer on death deed, in this section, or in sections 30-2313 to 30-2319 or section 30-2354, on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death:
(1) Subject to subdivision (2) of this subsection, the interest in the property is transferred to the designated beneficiary in accordance with the deed;
(2) The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor by one hundred twenty hours. If the deed provides for a different survival period, the deed shall determine the survival requirement for designated beneficiaries. The interest of a designated beneficiary that fails to survive the transferor by one hundred twenty hours or as otherwise provided in the deed shall be treated as if the designated beneficiary predeceased the transferor;
(3) Subject to subdivision (4) of this subsection, concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship; and
(4) If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one which fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
(b) A beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death.
(c) If a transferor is a joint owner and is:
(1) Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or
(2) The last surviving joint owner, the transfer on death deed of the last surviving joint owner transferor is effective.
(d) A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.
(e) If after recording a transfer on death deed the transferor is divorced or his or her marriage is dissolved or annulled, the divorce, dissolution, or annulment revokes any disposition or appointment of property made by the transfer on death deed as provided in section 30-2333.
A beneficiary may disclaim all or part of the beneficiary's interest as provided by section 30-2352.
(a) If other assets of the estate of the transferor are insufficient to pay all claims against the transferor's estate, statutory allowances to the transferor's surviving spouse and children, and the expenses of administration, a transfer under the Nebraska Uniform Real Property Transfer on Death Act subjects the beneficiary to personal liability as provided in this section to the extent needed to pay all claims against the transferor's estate, statutory allowances to the transferor's surviving spouse and children, and the expenses of administration.
(b)(1) A beneficiary who receives property through a transfer on death deed upon the death of the transferor is liable to account to the personal representative of the transferor's estate for a proportionate share of the fair market value of the equity in the interest received to the extent necessary to discharge the claims and allowances described in subsection (a) of this section remaining unpaid after application of the transferor's estate. For purposes of this subdivision (b)(1), the fair market value shall be determined as of the date of death of the transferor. For purposes of this subdivision (b)(1), the beneficiary's proportionate share means the proportionate share of all nonprobate transfers recovered by the personal representative for the payment of the claims and allowances under the Nebraska Uniform Real Property Transfer on Death Act and sections 30-2726, 30-2743, and 30-3850.
(2) A proceeding to assert the liability for claims against the estate and statutory allowances may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the transferor. The proceeding must be commenced within one year after the death of the transferor.
(c) A beneficiary against whom a proceeding to account is brought may join as a party to the proceeding a surviving party or beneficiary of any other transfer on death deed for the same transferor or any other asset of the transferor subject to sections 30-2726, 30-2743, and 30-3850.
(d) Assets recovered by the personal representative pursuant to this section shall be administered as part of the transferor's estate.
(e) Nothing in this section shall be construed to limit the rights of creditors under other laws of this state.
A beneficiary to whom an interest is transferred by a transfer on death deed shall be personally liable to account for medicaid reimbursement pursuant to sections 68-919 and 76-3417 to the extent necessary to discharge any such claim remaining unpaid after application of the assets of the transferor's estate. Such liability shall be limited to the value of the interest transferred to the beneficiary. The right to recover applies to medical assistance provided before, at the same time as, or after the signing of and the recording of the transfer on death deed.
A contract to make a transfer on death deed, or not to revoke a transfer on death deed, can be established only by a writing evidencing the contract signed by the transferor after January 1, 2013.
(a) Except as otherwise provided in subsection (b) of this section and subject to a determination of the rights of any parties to an action commenced pursuant to subsection (c) or (d) of section 76-3410, if property or any interest therein transferred to a beneficiary by a transfer on death deed is acquired by a purchaser or lender for value from a beneficiary of a transfer on death deed, the purchaser or lender takes title free of any claims of the estate, personal representative, surviving spouse, creditors, and any other person claiming by or through the transferor of the transfer on death deed, including any heir or beneficiary of the estate of the transferor, and the purchaser or lender shall not incur any personal liability to the estate, personal representative, surviving spouse, creditors, or any other person claiming by or through the transferor of the transfer on death deed, including any heir or beneficiary of the estate of the transferor, whether or not the conveyance by the transfer on death deed was proper. Except as otherwise provided in subsection (b) of this section, to be protected under this section, a purchaser or lender need not inquire whether a transferor or beneficiary of the transfer on death deed acted properly in making the conveyance to the beneficiary by the transfer on death deed.
(b) A purchaser or lender for value from a beneficiary of a transfer on death deed does not take title free of any lien for inheritance tax under section 77-2003.
The Department of Health and Human Services may require revocation of a transfer on death deed by a transferor, a transferor's spouse, or both a transferor and the transferor's spouse in order for the transferor to qualify or remain qualified for medicaid assistance.
In applying and construing the Nebraska Uniform Real Property Transfer on Death Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
The Nebraska Uniform Real Property Transfer on Death Act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).
Sections 76-3501 to 76-3507 shall be known and may be cited as the Radon Resistant New Construction Act.
The Legislature finds that:
(1) Radon is a radioactive element that is part of the radioactive decay chain of naturally occurring uranium in soil;
(2) Radon is the leading cause of lung cancer among nonsmokers and is the number one risk in homes according to the Harvard Center for Risk Analysis at the Harvard T.H. Chan School of Public Health;
(3) The World Health Organization Handbook on Indoor Radon includes key messages which state:
(a) "There is no known threshold concentration below which radon exposure presents no risk."; and
(b) "The majority of radon-induced lung cancers are caused by low and moderate radon concentrations rather than by high radon concentrations, because in general less people are exposed to high indoor radon concentrations.";
(4) The Surgeon General of the United States urged Americans to test their homes to find out how much radon they might be breathing;
(5) The United States Environmental Protection Agency estimates that more than twenty thousand Americans die of radon-related lung cancer each year;
(6) The United States Environmental Protection Agency has identified radon levels in Nebraska as the third highest in the United States because of the high concentration of uranium in the soil; and
(7) In 2018, the Radon Resistant New Construction Task Force recommended minimum standards for radon resistant new construction to the Governor, the Health and Human Services Committee of the Legislature, and the Urban Affairs Committee of the Legislature.
For purposes of the Radon Resistant New Construction Act:
(1) Active radon mitigation system means a family of radon mitigation systems involving mechanically driven soil depressurization, including subslab depressurization, drain tile depressurization, block wall depressurization, and submembrane depressurization. Active radon mitigation system is also known as active soil depressurization;
(2) Building contractor means any individual, corporation, partnership, limited liability company, or other business entity that engages in new construction;
(3) Department means the Department of Health and Human Services;
(4) New construction means any original construction of a single-family home or a multifamily dwelling, including apartments, group homes, condominiums, and townhouses, or any original construction of a building used for commercial, industrial, educational, or medical purposes. New construction does not include additions to existing structures or remodeling of existing structures;
(5) Passive radon mitigation system means a pipe installed in new construction that relies solely on the convective flow of air upward for soil gas depressurization and may consist of multiple pipes routed through conditioned space from below the foundation to above the roof;
(6) Radon mitigation specialist means an individual who is licensed by the department as a radon mitigation specialist in accordance with the Radiation Control Act; and
(7) Radon resistant new construction means construction that utilizes design elements and construction techniques that passively resist radon entry and prepare a building for an active postconstruction mitigation system.
Except as provided in section 76-3505, new construction built after September 1, 2019, in the State of Nebraska that is intended to be regularly occupied by people shall be built using radon resistant new construction. Such construction shall meet the following minimum standards:
(1) Sumps:
(a) A sump pit open to soil or serving as the termination point for subslab or exterior drain tile loops shall be covered with a gasketed or otherwise sealed lid;
(b) A sump used as the suction point in a subslab depressurization system shall have a lid designed to accommodate the vent pipe; and
(c) A sump used as a floor drain shall have a lid equipped with a trapped inlet;
(2) A passive subslab depressurization system shall be installed during construction in basement or slab-on-grade buildings, including the following components:
(a) Vent pipe:
(i)(A) A minimum three-inch diameter acrylonitrile butadiene styrene (ABS), polyvinyl chloride (PVC), or equivalent gas-tight pipe shall be embedded vertically into the subslab permeable material before the slab is cast. A "T" fitting or equivalent method shall be used to ensure that the pipe opening remains within the subslab permeable material; or
(B) A minimum three-inch diameter ABS, PVC, or equivalent gas-tight pipe shall be inserted directly into an interior perimeter drain tile loop or through a sealed sump cover where the sump is exposed to the subslab or connected to it through a drainage system;
(ii) The pipe shall be extended up through the building floors and terminate at least twelve inches above the surface of the roof in a location at least ten feet away from any window or other opening into the conditioned spaces of the building that is less than two feet below the exhaust point and ten feet from any window or other opening in adjoining or adjacent buildings; and
(iii) In buildings where interior footings or other barriers separate the subslab gas-permeable material, each area shall be fitted with an individual vent pipe. Vent pipes shall connect to a single vent that terminates above the roof or each individual vent pipe shall terminate separately above the roof. All exposed and visible interior radon vent pipes shall be identified with at least one label on each floor and in accessible attics. Such label shall read: Radon Reduction System; and
(3) Power source: In order to provide for future installation of an active radon mitigation system, an electrical circuit terminated in an approved box shall be installed during construction in the attic or other anticipated location of vent pipe fans.
New construction after September 1, 2019, shall not be required to use radon resistant new construction if (1) the construction project utilizes the design of an architect or professional engineer licensed under the Engineers and Architects Regulation Act, (2) the construction project is located in a county in which the average radon concentration is less than two and seven-tenths picocuries per liter of air as determined by the department pursuant to section 76-3507, or (3) other than for any residential dwelling unit, a local building official makes a determination, after a review of relevant guidelines for the intended use of the structure and property conditions, that radon resistant new construction is not necessary.
A building contractor or a subcontractor of a building contractor may convert a passive radon mitigation system to an active radon mitigation system in accordance with rules and regulations adopted and promulgated by the department under the Radiation Control Act for radon mitigation, but the contractor or subcontractor is not required to be a radon mitigation specialist to convert such system. A radon mitigation specialist shall conduct any postinstallation testing of such system.
On or before January 1, 2020, and on or before January 1 of each year thereafter, the department shall compile the results of the radon measurements performed in the past five years that were reported to the department pursuant to the rules and regulations adopted and promulgated by the department regarding the control of radiation and report such compilation electronically to the Clerk of the Legislature. Such report shall determine the average radon concentration in Nebraska by county and identify each county in which such average concentration exceeds two and seven-tenths picocuries per liter of air.
For purposes of sections 76-3601 to 76-3606:
(1) Home inspection means the process by which a home inspector examines the observable systems and components of improvements to residential real property that are readily accessible to such inspector;
(2) Home inspector means a person who, for compensation, conducts a home inspection; and
(3) Residential real property means a structure used or intended to be used as a residence and consisting of one to four family dwelling units.
(1) Before conducting home inspections in this state, a home inspector shall register with the Secretary of State. If the home inspector is an individual, the home inspector shall sign such registration. If the home inspector is a firm, partnership, corporation, company, association, limited liability company, or other legal entity, an officer or agent of the home inspector shall sign such registration. Such registration shall include:
(a) The name of the home inspector if the home inspector is an individual or the name of the legal entity under which such home inspector proposes to register and transact business in this state;
(b) The address of the home office of the home inspector;
(c) The name and address of the agent for service of process on the home inspector; and
(d) Any national certification relating to home inspection currently held by the home inspector.
(2) A home inspector may apply to renew a registration by submitting an application for renewal in a form prescribed by the Secretary of State within forty-five days prior to the expiration of the registration.
(3) A registration for a home inspector is valid for two years.
At the time of registration or renewal of a registration pursuant to section 76-3602, a home inspector shall:
(1) Pay a registration or renewal fee to the Secretary of State. The Secretary of State shall set such registration or renewal fee in an amount sufficient to defray the administrative costs of registration or renewal but not to exceed three hundred dollars. The Secretary of State shall remit such registration or renewal fee to the State Treasurer for credit to the Secretary of State Cash Fund; and
(2) Provide to the Secretary of State a certificate of insurance evidencing coverage in an amount of not less than two hundred fifty thousand dollars for general liability.
A home inspector shall report a change in information required by section 76-3602 or 76-3603 within forty-five calendar days of such change.
Any violation of sections 76-3602 to 76-3604 shall be a Class IV misdemeanor.
The Secretary of State may adopt and promulgate rules and regulations to carry out sections 76-3601 to 76-3606.
Sections 76-3701 to 76-3717 shall be known and may be cited as the Foreign-owned Real Estate National Security Act.
For purposes of the Foreign-owned Real Estate National Security Act:
(1) Nonresident alien means any person who:
(a) Is not a citizen of the United States;
(b) Is not a national of the United States;
(c) Is not a lawful permanent resident of the United States; and
(d) Has not been physically present in the United States for at least one hundred eighty-three days during a three-year period that includes the current year and the two years immediately preceding the current year; and
(2) Restricted entity means:
(a) Any person or entity identified on the sanctions lists maintained by the Office of Foreign Assets Control of the United States Department of the Treasury as such sanctions lists existed on January 1, 2025; or
(b) Any person or foreign government or entity determined by the United States Secretary of Commerce to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States pursuant to 15 C.F.R. 7.4, as such regulation existed on January 1, 2025.
(1) Except as provided in the Foreign-owned Real Estate National Security Act, a nonresident alien, a foreign corporation, a government other than the United States Government or a government of its states, political subdivisions, territories, or possessions, or an agent, a trustee, or a fiduciary thereof:
(a) Shall not purchase, acquire title to, or take any 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 real estate in this state by descent, devise, purchase or otherwise on or after January 1, 2025, except as provided in the Foreign-owned Real Estate National Security Act; and
(b) Shall be in compliance with the federal Agricultural Foreign Investment Disclosure Act of 1978, 7 U.S.C. 3501 et seq., with respect to any real estate in Nebraska.
(2) Except as provided in the Foreign-owned Real Estate National Security Act, a restricted entity, a nonresident alien, a foreign corporation, a government other than the United States Government or a government of its states, political subdivisions, territories, or possessions, or an agent, a trustee, or a fiduciary thereof, that on or after January 1, 2025, purchases, acquires title to, or takes any real estate or any leasehold interest in violation of the Foreign-owned Real Estate National Security Act shall be subject to divestment as prescribed under section 76-3712.
(1) Except as provided in subsection (2) of this section, 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 nonresident 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.
(2) Subsection (1) of this section shall not apply to a restricted entity or an agent, trustee, or fiduciary thereof. A restricted entity that violates subsection (1) of this section shall be in violation of the Foreign-owned Real Estate National Security Act and subject to divestment as prescribed under section 76-3712.
Any nonresident alien may acquire title to lands in this state by devise or descent only, except that such nonresident alien shall be required to sell and convey such real estate within five years after the date of acquiring it, and if the nonresident alien fails to dispose of it to a bona fide purchaser for value within such time, the nonresident alien shall be in violation of the Foreign-owned Real Estate National Security Act and the real estate shall be subject to divestment as prescribed in section 76-3712. If a person no longer meets the definition of nonresident alien within five years of acquiring title to real estate by devise or descent, such person shall not be required to dispose or divest of the property.
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 the Foreign-owned Real Estate National Security Act, shall elect nonresident aliens as members of its board of directors or board of trustees in a number sufficient to constitute a majority of such board, nor elect nonresident aliens as executive officers or managers nor have a majority of its capital stock owned by nonresident aliens.
Any corporation described in section 76-3706 violating such section shall be construed and held to be a nonresident alien and within the provisions of the Foreign-owned Real Estate National Security Act applicable to nonresident aliens. Any such domestic corporation violating section 76-3706 shall forfeit its charter and be dissolved. Any such foreign corporation violating section 76-3706 shall forfeit its right to do business in the State of Nebraska.
(1) Except as provided in subsection (2) of this section, the provisions of sections 76-3703, 76-3706, and 76-3707 shall not apply to the real estate necessary for the construction and operation of railroads, public utilities, and common carriers.
(2) Subsection (1) of this section shall not apply to a restricted entity or an agent, trustee, or fiduciary thereof. A restricted entity that violates subsection (1) of this section shall be in violation of the Foreign-owned Real Estate National Security Act and subject to divestment as prescribed under section 76-3712.
(1) Except as provided in subsection (2) of this section, any nonresident alien, foreign corporation, government other than the United States Government or a government of its states, political subdivisions, territories, or possessions, or agent, trustee, or fiduciary thereof:
(a) May purchase, acquire, hold title to, or be a lessor or lessee of as much real estate as shall be necessary for the purpose of (i) erecting on such real estate manufacturing or industrial establishments, and in addition thereto such real estate as may be required for facilities incidental to such establishments, or (ii) erecting and maintaining establishments primarily operated for the storage, sale, and distribution of petroleum products or hydrocarbon substances, commonly known as filling stations or bulk stations; and
(b) Shall not expand establishments or facilities purchased, acquired, held, or leased pursuant to subdivision (1)(a) of this section or build new such establishments or facilities if a restricted entity or an agent, trustee, or fiduciary thereof.
(2) A restricted entity, or an agent, trustee, or fiduciary thereof, shall not purchase, acquire, hold title to, or be a lessor or lessee of real estate pursuant to subdivision (1)(a) of this section unless such restricted entity has a national security agreement with the Committee on Foreign Investment in the United States as of January 1, 2025, maintains such national security agreement, and certifies the validity of such national security agreement annually to the Department of Agriculture within thirty days after January 1, 2025, and on or before January 15 of each year thereafter.
(3) A restricted entity that violates this section shall be in violation of the Foreign-owned Real Estate National Security Act and subject to divestment as prescribed under section 76-3712.
(1) Except as provided in subsection (2) of this section, the provisions of the Foreign-owned Real Estate National Security Act shall not apply to any real estate lying within the corporate limits of cities and villages, or within three miles of such corporate limits, nor to any manufacturing or industrial establishment described in section 76-3709.
(2) A restricted entity, or an agent, trustee, or fiduciary thereof, that purchases, acquires, holds title to, or is the lessor or lessee of any real estate lying within the corporate limits of cities and villages, or within three miles of such corporate limits, or any manufacturing or industrial establishment described in section 76-3709 shall be subject to sections 76-3703 and 76-3709. A restricted entity that violates this subsection shall be subject to divestment as prescribed under section 76-3712.
(1) The Attorney General shall establish a process by which any person may submit information or concerns to the Attorney General regarding real estate transactions in Nebraska.
(2) The Attorney General may submit a report concerning real estate transactions that the Attorney General has identified in Nebraska to the Committee on Foreign Investment in the United States.
(3) The Attorney General shall (a) retain a copy of any documents submitted to the Committee on Foreign Investment in the United States that are included with any report submitted under subsection (2) of this section and (b) notify the Legislature and the Governor as soon as practicable after submitting such report and included documents to the Committee on Foreign Investment in the United States.
(1) Any person may notify the Department of Agriculture or the Attorney General of a violation or potential violation of the Foreign-owned Real Estate National Security Act.
(2) The Department of Agriculture shall investigate violations of the Foreign-owned Real Estate National Security Act. If the Director of Agriculture has reasonable suspicion to believe that a violation of the act has occurred, the director shall refer the suspected violation to the Attorney General or outside counsel retained by the Department of Agriculture for enforcement.
(3) The Attorney General or retained outside counsel, upon a referral by the Director of Agriculture or upon the receipt of any information from any person that gives the Attorney General or retained counsel reasonable suspicion to believe that a violation of the Foreign-owned Real Estate National Security Act has occurred, may issue subpoenas requiring the appearance of witnesses, the production of documents, and the giving of relevant testimony. Service of any subpoena shall be made in the same manner as a subpoena issued by any court in this state.
(4)(a) After investigation, if the Attorney General or retained outside counsel believes that a violation of the Foreign-owned Real Estate National Security Act has occurred, the Attorney General or retained outside counsel shall notify any restricted entity believed to be committing such violation that such entity may voluntarily divest any interest in real estate that is the subject of the violation.
(b) The restricted entity shall indicate to the Attorney General or retained outside counsel whether such entity is voluntarily divesting any interest in real estate that is the subject of the violation within thirty days of receiving the notice under subdivision (4)(a) of this section.
(c) If the restricted entity indicates that it is voluntarily divesting any interest in real estate that is the subject of the violation, the restricted entity shall be entitled to a grace period of one hundred eighty days to voluntarily divest the interest.
(d) The grace period of one hundred eighty days shall begin upon the end of the thirty-day period under subdivision (4)(b) of this section.
(e) The restricted entity shall not sell or otherwise transfer the real estate to a person or entity prohibited under the act. A restricted entity who violates this subdivision shall be subject to a civil penalty not to exceed fifty thousand dollars per parcel of real estate sold or otherwise transferred to a person or entity prohibited under the act.
(5) The Attorney General or retained outside counsel shall commence an action in either the district court in the county in which all or part of the real estate is located or in the district court of Lancaster County if:
(a) The restricted entity fails to indicate to the Attorney General or retained outside counsel that the entity is voluntarily divesting any interest in real estate that is the subject of the violation within the thirty-day period under subdivision (4)(b) of this section; or
(b) The restricted entity fails to voluntarily divest any interest in the real estate that is the subject of the violation within the grace period of one hundred eighty days.
(6) Upon commencement of an action under this section, the Attorney General or retained counsel shall:
(a) Promptly record a notice of the pendency of the action in records with the register of deeds in each county in which all or part of the real estate is located; and
(b) Serve a copy of the petition by service of process in the same manner as in civil cases as follows on:
(i) The owner of the real estate if the owner's address is known;
(ii) Any secured party who has registered or filed a lien, mortgage, or trust deed against the real estate or filed a financing statement against the real estate as provided by law if the identity of the secured party can be ascertained by the entity filing the petition by making a good faith effort to ascertain the identity of the secured party;
(iii) Any other bona fide lienholder or secured party or other person holding an interest in the real estate if such party is known; and
(iv) Any person residing on the real estate subject to divestment at the time the petition is filed.
(7) The court shall have power to hear and determine the questions presented in such case and to declare such real estate to be divested. The burden is on the state to prove by clear and convincing evidence that the real estate is subject to divestment under the Foreign-owned Real Estate National Security Act. If the court finds that the real estate that is the subject of an action commenced under the act was purchased, acquired, taken, or held in violation of the act, the court shall enter an order that:
(a) States the findings of the court;
(b) Orders the divestment of the interest in the real estate of the person or entity that violated the act;
(c) Notifies the Governor that the title to such real estate is ordered divested by the decree of the court;
(d) Orders the Attorney General or retained outside counsel to promptly record a copy of such divestment order with the register of deeds of each county in which all or part of the real estate is located;
(e) Appoints a receiver subject to sections 25-1081 to 25-1092 to manage and control the real estate through the final disposition of the real estate; and
(f) Authorizes the proceeds of the divestment to be disbursed in the following order:
(i) The payment of any taxes and assessments due;
(ii) The payment of court costs related to the action or actions commenced under the Foreign-owned Real Estate National Security Act;
(iii) The payment of authorized costs of the sale, including all approved fees and pending sale expenses and expenses of the referee;
(iv) Reimbursement of investigation and litigation costs and expenses, in an amount approved by the court, to the Attorney General or retained outside counsel;
(v) Payment to bona fide lienholders of the real estate, in order of lien priority, except for liens which under the terms of the divestment are to remain on the real estate; and
(vi) Remittance of any remaining proceeds to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.
(8) If the interest is a lease, easement, or interest other than fee title, the court shall have power to declare such interest terminated.
(9) If the respondent fails to answer or appear for the action commenced pursuant to this section, the court may enter default judgment.
The receiver shall sell any real estate ordered to be divested pursuant to section 76-3712 at public auction no later than one year after the date such divestment is ordered by the court. The receiver shall execute the sale of the real estate in the manner provided for in the Nebraska Trust Deeds Act. The purchaser at any sale conducted by the receiver pursuant to the Foreign-owned Real Estate National Security Act shall receive title to the real estate purchased, free from all claims of the owner or prior holder thereof and of all persons claiming through or under the owner or prior holder. The receiver shall execute all documents necessary to complete the transfer of title.
No title to an interest in real estate shall be invalid, voided, or subject to divestiture by reason of a violation of the Foreign-owned Real Estate National Security Act by any former owner or other person who held a former interest in such real estate.
Nothing in the Foreign-owned Real Estate National Security Act shall be construed to require any person or entity to determine or inquire whether another person or entity is subject to or in violation of the act, and such person or entity shall bear no civil or criminal liability under the act for the failure to make such determination or inquiry. The Attorney General, retained outside counsel, and Director of Agriculture are responsible for determining whether a person or entity is subject to or in violation of the act.
Any penalties collected pursuant to the Foreign-owned Real Estate National Security Act shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.
The Director of Agriculture and the Attorney General may adopt and promulgate rules and regulations necessary to carry out the Foreign-owned Real Estate National Security Act.