Beran Law Office - Residential Landlord FAQ

Jan E. Beran, Attorney at Law

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Frequently Asked Questions About Nebraska Residential Landlord Tenant Law

How can I obtain a copy of the law?
- Library. Most libraries (in Nebraska) have copies of the Revised Statutes of Nebraska. The Uniform Residential Landlord and Tenant Act is found in chapter 76 Sections 1400 through 1449. You may also find a copy of the statutes in most law libraries.
- Beran Law Office. If you do not have access to a library or if your library does not have a copy or would like your own copy, email us for instructions. There may be a small copying charge if you are not a client.
- Online. There are web sites operated by the Clerk of The Legislature, the Nebraska Real Estate Commission and the State Bar Association that may get you to the information you need also.
- Hyper text document. Landlord and Tenant Act Online for your personal copy send us $5.00. We will provide you with a diskette (PC only) with the Landlord tenant statute and abandon property law.
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What do I do with a tenant's property left in a residence after the tenant vacates?

Abandon Property Law. Nebraska has a law entitled the Disposition of Personal Property Landlord and Tenant Act. The act may be found in Chapter 69, Sections 2301 through 2314 of the Revised Statutes of Nebraska
Call or email us for a copy of the fact sheet we have prepared and the statutory form of the notice.
In a nutshell here is what you have to do

Inventory the property

Please note the law makes no distinction about trash or valuable property
Perishable property and "trash" could be left in the premises for a short period
The law does not protect you from liability if the property is not described in the notice
A notice without an inventory may not protect you from liability

Mail notice and copy of inventory to tenant

Note there is statutory language so use my form or another approved form
The notice will advise the tenant if all the property is worth less than $2,000 the property can be discarded after the 14 days following mailing of the notice
If all the property is worth more than $2,000 the notice will advise the tenant that the property will be auctioned after 14 days.

Move property to storage if desired
After 14 days has expired since the mailing of the notice, Dispose of property if all of the property is worth less than $2,000 OR advertise and auction property according to the law if over $2,000

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Security deposits, how much? may it be collected in payments? can I accept sweat equity? does it apply to rent during the term? when must I return the deposit.
- The Landlord and Tenant Act requires that the security deposit not exceed one-month's rent. A separate pet deposit may be collected if the tenant has a pet, the pet deposit may not exceed one- fourth of one month's rent. Rent (including last month's rent) may be required to be paid in advance. Note certain pets are not considered pets, in particular comfort animals, no deposit is required.
- There is no statutory requirement that a deposit be paid in full prior to commencement of the term. However, a landlord is without security if a full deposit is not collected. The only remedy to collect the deposit is through the use of a 14/30 day notice (14 days to pay, 30 days to vacate). If a landlord has a practice of accepting tenants without requiring the full deposit and first month's rent, it is better to apply any payments first to the deposit and then to rent. If a tenant defaults on a payment of rent, issue a 3 day notice.
- Sweat Rent/Deposit is not a favored practice. There are too many potential problems and liabilities. If a landlord and tenant agree that a tenant will perform certain work/clean up in lieu of a rent or deposit payment, the agreement should be in writing and be specific as to completion dates, partial performance, liability for defective workmanship, condition of premises at termination of the lease, landlord's right of approval, and most importantly the value of the work. Did I mention that the agreement must be in writing? Nebraska Stat. §76-1419 requires that such agreements between landlord and tenant be in writing.
- Unless agreed, a security deposit is not to be applied to rent during the occupancy of the rental. If a tenant unilaterally applies or attempts to apply the deposit to rent (last month's rent for example), they are in violation of their obligation to pay rent and can be evicted.
- Nebraska Stat. §76-1419 requires that the security deposit be returned to a tenant within 14 days after the termination of the occupancy. If the landlord is making deductions for damages and or unpaid rent, then the balance and a written itemization must be delivered or mailed to the tenant. If the repairs cannot be accomplished within the 14 days, then the landlord must be careful to obtain accurate estimates of the repairs from reliable contractors and only withhold a reasonable sum to make the repairs.
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How many pets (cats and dogs) may a person keep in the residence?
- Local ordinance may govern the number, size, and possibly breed of domesticated animals which may be kept in a residence. The Uniform Residential Landlord and Tenant Act is silent as to animals except as related to the amount of deposit. (Not to exceed one-fourth of one month's rent.)
- Lincoln Municipal Code requires all dogs and cats to be licensed. It is a criminal violation for keeping any dog or cat more than one month without a license. Owners may have up to three dogs in their possession and only one cat. If a person has more than one cat, they must obtain a "cattery" license. The limit apparantly does not apply to neutered female cats.
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Minnesota landlord held liable for lead based paint poisoning.
- A Minnesota case holds landlord liable for damages which child sustained as a result of ingesting lead based paint chips.
- There is no way to adequately protect yourself thus you need to follow very strict compliance methods to reduce your risk. Require the tenant to execute a Lead Paint Disclosure and make sure that they have a copy of HUD's lead based paint booklet. Then consider having your building tested for lead paint and hire a specialist to do the abatement.
- If your building was built prior to 1978 it is likely that it has some lead based paint. It does not matter if you have repainted your building inside and out the lead based paint threat may still there. The only way to "lead proof" your building is to have a certified lead based paint abatement specialist remove and/or seal the affected areas.
- You may obtain additional information, at my lead page.
- To obtain a fact sheet and request a copy of the disclosure form email us. Be sure to state LEAD BASED PAINT DISCLOSURE FORM in the subject line of your email.
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Are licensed property managers required to comply with Nebraska's agency disclosure requirements?
- Under Nebraska Real Estate law licensees were required to comply with the agency disclosure law. Tenants are required to sign a disclosure which explained the relationship between the agent, the owner and the prospective tenant.
- In most cases the property manager is a common law agent and thus not required to make the disclosure.
- A tenant's agent, or an agent who is not performing acting as a common law agent would be required to comply with the disclosure law.
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How do I deal with tenants who are creating a danger (drugs, gang activity, violence and abuse) in the rental?
- The Legislature just approved an amendment to Neb. R.R.S. 76-1431 to allow a 5 day termination of lease. I have a new form and instructions for use. You need to know details and the problem tenant must have actually created a threat to health or safety. The problem will be in proving the acts of violence or damage. We will need more than just a simple Police Incident Report.
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What can I do if a tenant's utilities are disconnected for non-payment?
- Unfortunately here again is a situation where the landlord is without a swift enough remedy to protect property and innocent neighbors. Call your state legislator and express your displeasure at the inadequacy of our remedies.
- A landlord must give the tenant 14 days opportunity to cure the breach and failing to do so, 30 days to vacate. Of course winter wil be almost over by that time and pipes will have burst long ago.
- Local health code ordinances may allow the city to "red tag" the property, but be careful, the inspectors will not just look at the status of the utility service. If there are any other violations you will be required to fix those too. In addition, there are other considerations which I am not free to discuss here, please call me.
- I am sure it is of little consolation that the tenant could be held responsible for the damage (but if they cannot pay the utility bill, how are they going to pay for the damages?)
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I have rented to two or three singles. They are having roommate disputes, what if anything can I do?
- The best position that the landlord should have is one of preserving the right to collecting all of the rent and protecting your real estate. Beyond that what disputes the roommates may have between each other is their business.
- Most leases and rental agreement make tenants "jointly and severally liable". That essentially means that each of the tenants is responsible for the rent. If one of the tenants vacates, and one stays the remaining tenant is still responsible for the total rent. The reverse is also true, the vacating tenant may be liable for any rent and damages which are owing.
- The tenants may have a claim against the vacating tenant.
- The landlords does not have a claim against a vacating tenant until the remaining tenant defaults.
- It is impractical to evict only one of the tenants.
- Unless otherwise agreed, any refund of deposit at the conclusion of the lease is due to all of the tenants.
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Tenants failed to pay rent, but I do not want to evict them and create a vacancy. Can I sue them in Small Claims Court and then garnish their wages?
- A judgment in Small Claims Court may complicate or even prevent you from evicting a tenant at a later point.
- If a tenant is not paying rent, your rental is already vacant. However when the tenant is paying utilities it is tempting to let the tenant stay in the rental to keep the rental from freezing for example. This is never a good practice and I discourage you from doing so.
- In theory you can sue them in Small Claims Court and then garnish wages. However this is not without some risk. Be sure that their wages are garnishable and make sure that the tenant is a stable employee (often times when wages are being garnished, the employee and or employer terminates the employment).
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I started giving lead paint disclosures when I first found out about the law, do I need to do anything else.
- YES! The early sample disclosure we obtained from HUD/EPA incorrectly used the words "taken care of" instead of "managed". Be sure your warning statement is up to date.
- See my disclosure statement and the notes associated with the statement.

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A tenant has failed to pay rent when due, what happens next?

The first step is to send a notice requiring the tenant to pay the rent or to vacte. The notice must give the tenant at least three days to comply.
You are not required to accept a partial payment of the rent within the notice period. A partial payment is a waiver of the notice
You are obligated to accept full payment of the rent within the three days.
You are not obligated to accept any payment after the three days.
You may not include other amounts on the notice such as deposits, damates, or utility bills on the notice.
The wording of the notice is governed by statute. Please call us or request a copy by email
If you insist on "doing it yourself" your written notice must state that rent has not been paid (some judges require the notice state the amount due) and if it is not paid within 3 days, the rental agreement will terminate. Anything less than that is subject to being thrown out of court and you will have to start over.

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What guidelines are there when deciding what is "usual wear and tear"?
- Unfortunately there are no hard and fast rules.
- Usual or ordinary wear and tear is what condition would the property be expected to be in after living in the unit for the period of time.
- For example, Judges usually will consider that an apartment will have to be repainted after a tenant lives in an apartment for one year. Thus painting after a years time may not be claimed as a damage as it is usual wear and tear.
- Similarly, it is commonly considered that carpet in rentals is fully depreciated after 7 years, the life expectancy of standard grade carpet. Thus a landlord will be entilted to 2 years proration of a carpet needing replaced after only 5 years of use which has been destroyed by a tenant.
- Trash left behind is not usual wear and tear. Nor are dirty appliances. Holes in walls are not usual wear and tear, but picture nails may be.
- You may need expert testimony to prove or disprove what is usual wear and tear.
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My tenants have damaged the property (broken windows) and the property is generally a mess (trash etc).
- Nebraska law requires that landlord make certain repairs to the premises. Some repairs can be performed by the tenant but there has to be a written agreement (see my Highlights booklet).
- After the repairs are made, the landlord must give the tenant a 14/30 day notice. That is, fourteen days to correct the problem (pay the repair bill) or thirty days to move. If the bill is not paid and the tenant holds over an action for possession may be brought to evict the tenant.
- Housekeeping problems are difficult to enforce. Most often courts will not evict a tenant unless the problems are affecting the health of the tenant or adjoining apartments.
- All notices to the tenant are to be mailed by regular first class mail postage prepaid. Do not post the notice at the premises nor mail it certified.
- The landlord packet that is available for a minimal charge contains the notice and instructions about how to use them.
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I have a stubborn tenant in my rental who refuses to give me access. The written lease is now month to month. They refuse to give me access without a confrontation even though I gave them a 24 hr notice that I was coming in. Rent is paid on time, but I need to get in to my property to assess the condition. What are my alternatives?
- Nebraska law requires that landlords give a one day's notice of their intent to enter the property for inspections, repairs etc. (See Nebraska Revised Statutes Section 76-1423).
- When a tenant refuses to allow reasonable and lawful access the landlord may give the tenant a 14/30 day notice to comply. In otherwords, the tenant has 14 days to quit denying access to the property. If the tenant continues to refuse access, they will have to vacate the property within 30 days. Failing to do so, they can be evicted after the holdover.
- Since this tenant is now month to month, they may be given a thirty day notice PRIOR TO the periodic rental date (usually the first of the month). A month to month lease may be terminated by either party without cause by giving the other a 30 day notice. However, if your written lease requires a longer period, 60 days for example, the longer period in the lease would be controlling even though the lease is now month to month.
- All notices to the tenant are to be mailed by regular first class mail postage prepaid. Do not post the notice at the premises nor mail it certified unless you also mail a copy by regular mail. Again, if your written agreement specifies another method of service, that provision will control.
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I own the small cottage next to my home which I rent out. I have recently landscaped both properties, making them appear as one unit and have added a storage shed which I use. With the landscaping, the unit is very attractive and I have been able to rent it for top rent. I do not want to give up my storage shed, and I intend to continue to maintain the landscaping (tenants please keep off). I also have joined the back yards to make a larger area for entertaining.
- Nebraska law defines the rental premises to include the: "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." (See Nebraska Revised Statutes Section 76-1410).
- Thus a landlord should be able, prior to the commencement of the tenancy, define what amenities are included and which are excluded from the rental.
- Your written lease, rental agreement and rules and regulations should make it clear to the tenant that the shed is not included, and what rights of access they have to the landscaping and yard.
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Can residential leases provide for a 60 day or longer notice requirement?
- URLTA does not specifically prohibit or authorize a 60 day notice requirement.
- While the statute does not prohibit the 60 day notice, it is possible that a judge could deem the requirement to be unconscionable.
- A determination that the provision is unconscionable assumes that a lawsuit over the issue would actually reach the court. To improve chances that it would be enforced, the landlord should be prepared to show that the tenant was informed of the requirement in another method in addition to the language in the lease. Evidence showing that the property has certain marketing pecularities that necessitate a longer marketing time would be useful.
- See Nebraska Revised Statutes Section 76-1437.
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My tenant died or got put in jail or had to leave the country or . . . (it doesn't matter we've heard them all).
- Hopefully you have contact information for a person who will be responsible to assume control of their property after death the law has been amended to allow you to require a tenant to update the information annually.
- There is also a procedure to follow concerning their "abandoned" property.
If the tenant hasn't given you the name of a person responsible, and their friend, family member or ex-wife wants to come clean out their apartment, but they need you to let them in. Should you just let them in?

Unless you were given the friends name by the tenant, if you let them in the premises, you may held liable to the tenant (or the tenant's estate) for any property which was removed from the apartment.
These "I'm a friend" claims are often ruses to get in and steal the tenant's good property, hide or steal the drugs, or some other nefarious scheme.
If you want to release the property and trust the friend, make a photocopy of their picture identification. You are also well advised to inventory the property before releasing it to them or at least take a series of good photos. Make sure you give a one day's notice before entering.
The tenant should sign a release, releasing you from any responsibility, with specific instructions allowing the friend or family member to remove the tenant's personal property. Do not accept a phone call from the tenant. If you get sued over the mess, you'll need written documentation.
If the tenant is not available, you should at least have the family member sign an indemnity agreement. While this will not absolve you of liability, it attempts to shift it to the friend/family member. If that friend or family member disappears or doesn't have the means to hold you harmless from the lawsuit, you could still be liable.
In addition you should find out who is going to be responsible for the clean up, when they will be done, where to contact them after they have completed the clean out. If they are not removing all of the property, find out who is and when they will do so.

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I want to change certain provisions of my written rental agreement. The tenant is under contract with several months remaining. What is the procedure to make changes?
- A lease is a legal hybrid. Being part contract, modifications of leases must have the agreement of all parties similar to modification of contracts. Because a lease is also part conveyance, (a transfer of an ownership right, the right of possession) a court will also consider the "reasonableness" of the modification. Because residential rental agreements are also statutorily regulated, the modification must satisfy statutory requirements.
- While the lease is still in effect (the term has not expired) the lease cannot be modified without the agreement of the tenant.
- If you are nearing the end of the term, or are already month-to-month, the lease can be modified by giving the tenant a proper notice (usually 30 days). Because the tenant may not agree to the changes, the notice should also give them notice of termination of the lease (if they do not sign the new lease).
- Please see Neb. R.R.S. 76-1422 concerning modification of rules and regulations.
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I cannot get all of the damages computed within the 14 days after the tenant vacates the property, what can I do?
- Very important question! Nebraska's landlord and tenant act requires that landlords account to the tenant for any deduction to the security deposit within 14 days after the tenant vacates. A recent small claims case has underscored the importance of strict compliance.
- Neb. R.R.S. 76-1416(2) which states in part: "The balance, if any, and a written itemization shall be delivered or mailed to the tenant within fourteen days after demand and designation of the location where payment may be made or mailed."
- If it is absolutely impossible (not just a matter of convenience) to get the repairs completed, you should obtain valid estimates from reputable contractors to complete the repairs and use those estimates on the "estimated itemization of damages".
- After you get the repairs complete, if the estimate was high, and it makes a difference in the tenant's favor be sure to send an updated itemization and the refund.
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I already have judgment for possession against my tenant. The tenant finally came up with some money. If I accept it do I waive the right to evict the tenant?
- Proceed with caution. Post judgment agreements should be reduced to writing. The writing should detail what happens if the tenant does not pay all of the balance owing. Be sure to cover all of the rent, late payments, outstanding charges, reinstatement fee, attorney fees, and court costs in the payment schedule.
- Once you have received full payment, the judgment is satisfied, and the lease is reinstated, you would not be able to evict the tenant as part of this case.
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My tenant got called up from reserves to active duty in Afghanistan. He claims that I have to let him and his wife out of the lease.
- To provide for a more mobile military, Federal law (the Soldiers and Sailors Civil Relief Act) allows for the suspension or cancellation of certain civil responsibilities. As part of the act, military person may be entitled to terminate a lease prior to the end of the term by giving 30 days notice from the first of the rental period.
- The law appears to apply only to those who were called into active service after signing the lease. The protection applies to the military person, their dependants, and cosignors.
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I've talked to the recruiter, and he or she threatens to have the JAG attorneys call me and prosecute (up to $1,000 fine and time in jail) me if I don't let the soldier out of the lease as soon as possible. What do I do?
- The law allows for the termination of a lease 30 days after the first date on which the next rental payment becomes due.
- As a practical matter, the effect is the same as the lease being month to month.
- If you haven't already read the other soldier question please do so. It would also be good to read my Military outline and read a copy of the actual United States Code that pertains to leases, 50 USC Appx §534.
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I need to evict a soldier's family. The soldier has been called up for active service, but the family stayed behind and has fallen behind in rent payments. Can I evict them?

Essentially the proceedings are stayed for 3 months if rent is less than $1200 per month.
Read the law protecting the family at 50 USC Appx §530

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I gave a 30 day notice to the tenant, but he claims he didn't receive it until after the first and therefore is not effective.
- Month to month leases have to be terminated at least 30 days prior to the periodic rental date (most of the time the 1st of the month). See Neb. R.R.S. 76-1437.
- Therefore, the notice must be mailed to the tenant or delivered to the landlord before the 1st of the month.
- Please note that the notice is effective the date of mailing if it is given by the landlord to the tenant, but effective the date it is delivered to the landlord.
- A month to month tenancy may be terminated without cause by either the landlord or the tenant.
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Does the new agency disclosure law affect property managers.
- New disclosure rules went into affect recently, and though the agency disclosure is different the rule is still the same.
- If you are a licensed property manager, you must disclose the types of agency available to owners, and prospective clients. A residential tenant most often a customer, not a client.
- If you represent a landlord client as a common law agent (generally have the ability to sign leases for and bind your client in other agreements) you do not have to disclose this relationship to the tenants.
- The non-disclosure exception only applies to residential units for which you manage and are a common law agent. If you are showing the property by some multiple listing arrangement like commonly found in commercial property listings, you must disclose to the lessee customer/ client.
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Mailing of Notices: I heard that three days must be added to mailed notices in order to comply with state law. Should I change my procedures of mailing notices or go back to delivery?
- True, certain notices you have to add 3 days for compliance. Neb. R.R.S. 25-534 requires that when a party is required to act within a certain time and the notice was mailed, "three days shall be added to the prescribed time."
- I do not believe that this statute has any bearing on landlord tenant notices and the recommendation is to continue to serve the notices in the manner provided by law.
  1. Mail first class postage prepaid
  2. Delivered to the tenant "in hand" (the statute uses the words in hand and doesn't seem to allow posted types of service)
- My analysis of section 25-534: The section is referring to motions, orders and other notices which are served on a party's attorney requiring the party to perform within a period of time. I have not looked into the legislative history regarding this law, but believe that it was intended to allow time for the attorney who received the initial mailing to subsequently mail the notice to their client, thus needing an additional 3 days.
- Furthermore, I believe that the specific landlord tenant three day notice statute overrides the general provisions set out in 25-534 which apply after the commencement of the law suit.
- Thus where a notice is mailed directly to the party and no eviction law suit is pending, the additional 3 days need not be added.
- Please note that the distinguished speaker at the seminar may attempt to use section 25-534 as a defense to an eviction action.
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What is the "new law" concerning mold in apartments?
- Most of the problem with mold is a couple of court cases finding landlords potentially liable for the treatment of mold related illnesses and allowing the termination of the leases.
- If you know there was mold in your unit, to protect yourself from liability you should disclose this condition just as you would any latent defect or other hidden condition.
- So far there are no Nebraska statutes, Lincoln ordinances or Federal Codes.
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After reviewing an prospective tenant's credit and reference application, I have decided that their credit is not within my usual requirements, what do I need to do?
- If you used a credit bureau report or a tenant screening company, the Fair Credit Reporting Act, (a Fedaral law) requires that you give the tenant notice of the adverse action.
- Even if you do not use a credit bureau ot tenant screening report, you must notify the applicant that their application was rejected and the reason why.
- I recommend that you read the Federal Trade Commission's web page on this issue. It is titled Using Consumer Reports: What Landlords Need to Know
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After we go to court and get our judgment for eviction, what happens next? Can I just go change the locks?
- Evictions in Nebraska are a 3 step process. First, you must send a notice. Second you must file an eviction law suit and get a judgment for restitution of the premises. Finally if the tenant is still in the property, the sheriff or constable must restore the premises to you pursuant to a "writ of restitution"
- The Lancaster County Sheriff has a very helpful page regarding the Writ of Restitution.
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What is the legal age when a person can enter into and be bound by a lease?
- The law used to be that only someone who had reached the age of majority could be bound by a lease agreement. That age was set by statute at 19 (many states the age of majority is 18)
- In 2010 the Legislature amended our law, but did not change the age of majority, instead they carved out an exception for persons who have reached the age of 18 years to be able to lease and enter into other contracts. The exception does not apply to 18 year olds who are wards of the state.
- Click here to view the law.
- Remember that, a person's minority ends when they get married, (thus a 17 year old who is married would not be considered a minor and could enter into a lease) unless the minor is committed to a state instution under the Nebraska Juvenile Code (in which case the question of their renting an apartment is probably moot).
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Your question could be here (or I will add more from the list I already have)
- My best guess to your question will be here.
- Hopefully I can direct you to the relevant statute.

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