Tenant Defenses to Evictions in Nebraska

In Nebraska, a landlord can evict a tenant for a variety of reasons, the most common of which are not paying rent or violating the lease or rental agreement. If a tenant is being evicted for one of those reasons, the tenant may have a defense available to challenge the eviction.

This article examines the basic eviction procedures in Nebraska, along with the most common grounds for eviction and some of the most common defenses available.

Grounds for Eviction in Nebraska

Nebraska has adopted the Uniform Residential Landlord and Tenant Act (URLTA), which regulates the rules landlords and tenants must follow when renting property in Nebraska, including the rules governing evictions. The most common reasons for eviction are failing to pay rent or violating the lease agreement. When attempting to evict a tenant for one of these reasons, the landlord must carefully follow all the rules set out in the URLTA.

Failure to Pay Rent

A landlord cannot just go straight to the courthouse to file an eviction lawsuit as soon as a tenant fails to pay rent. The landlord must first provide the tenant with a three-day notice. The notice must state that the tenant has three days to pay rent or the landlord will terminate the lease. If the tenant does not pay rent within the three-day time period, the landlord can then go to court and file an eviction lawsuit (see Neb. Rev. Stat. § 76-1431(2)).

Lease Violations

Before a landlord can file an eviction lawsuit for a lease violation, the landlord must provide notice to a tenant. The notice for the lease violation must state that the lease will terminate and eviction proceedings will begin in 30 days, unless the violation is fixed within 14 days from the date of the notice. If the tenant does not fix the lease violation within 14 days, then the landlord can file the eviction lawsuit with the court at the end of the 30-day time frame.

If the tenant fixes the violation and then, within six months, commits the same violation again, the landlord must give the tenant a 14-day notice that states the lease will terminate in 14 days and eviction proceedings will begin at that time. The landlord is not required to give the tenant any time to fix the violation. This means that even if the tenant fixes the violation within the 14 days, the landlord can still proceed with the eviction (see Neb. Rev. Stat. § 76-1431(1)).

Examples of lease violations include subletting the apartment when subletting is specifically prohibited in the lease or having a pet when none are allowed.

Eviction Process

If the tenant has not fixed the lease violation or paid rent before the notice period ends, then the landlord can file an eviction lawsuit with either the district court or county court in Nebraska (see Neb. Rev. Stat. § 76-1409). The landlord must file a complaint and summons with the court. After the paperwork is processed by the court, the tenant will receive a copy. The summons will have a time and date on it for a hearing before a judge. If the tenant wishes to challenge the eviction, the tenant must attend the hearing. At the hearing, the judge will listen to both the landlord and the tenant and then make a final decision regarding the eviction (see Neb. Rev. Stat. § § 76-1440–1447).

The tenant may find that challenging the eviction is not always the best option. The tenant might have to pay the landlord's court and attorney's fees if unsuccessful in court. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Eviction Defenses in Nebraska

A tenant being evicted for failing to pay rent or violating the lease may have at least one defense available.

Landlord Evicts Tenant through "Self-Help" Methods

A tenant can only be evicted after a landlord has received a court order allowing the eviction to proceed. Nebraska law makes it illegal for a landlord to attempt to evict a tenant through any other means, including shutting off the utilities or changing the locks at the rental property. This type of unlawful action by a landlord is often referred to as a "self-help" eviction. If a tenant is evicted in this manner, the tenant can sue the landlord for damages (see Neb. Rev. Stat. § 76-1430). For more information on "self-help" evictions, see the Nolo article Illegal Eviction Procedures in Nebraska.

Landlord Does Not Follow Proper Procedures

It is very important that a landlord carefully follow all the procedures set forth in the URLTA when evicting a tenant. If the landlord does not follow all the rules, the eviction may not be valid. For example, the landlord must give the tenant a 30-day notice when attempting to evict the tenant for a lease violation. The notice must state that the tenant has 14 days to fix the violation or the lease will terminate at the end of 30 days. The landlord must wait the full 30 days before filing the eviction lawsuit. If the landlord decides to file the eviction lawsuit after only 14 days, the tenant can use lack of proper notice to defend against the eviction. The eviction lawsuit would then stop, and the landlord would have to re-start the process, giving the tenant a new 30-day notice. The landlord would have to wait the proper 30 days before filing a new eviction lawsuit with the court. As long as everything was then in order, the eviction would likely proceed. It is important to note that this type of defense does not stop a justified eviction. It merely delays it. As soon as the landlord fixes the deficient procedure, the eviction will continue.

Landlord Evicts Tenant for Not Paying Rent

A tenant may have a defense available if being evicted for not paying rent.

Tenant Paid Rent in Full

After a tenant fails to pay rent on time, a landlord must give the tenant a three-day notice that allows the tenant to pay rent within three days before the landlord can file the eviction lawsuit. If the tenant pays the rent within the three-day period, the landlord must not proceed with the eviction (see Neb. Rev. Stat. § 76-1431(2)). The tenant should always ask for a time-stamped receipt if paying rent because of a three-day notice. This way, if the landlord proceeds with the eviction even after receiving the rent, the tenant can use the receipt as evidence that rent was paid on time.

Landlord Did Not Maintain the Rental Unit

A landlord in Nebraska is required to maintain the rental unit in a fit and habitable condition. This means the landlord must do the following:

• comply with all housing codes that affect health and safety
• keep all common areas clean and safe
• maintain in good and safe working order all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances the landlord agreed to supply
• provide trash receptacles and arrange for their removal, and
• supply running water, including hot water, and heat at all times.

See Neb. Rev. Stat. § 76-1419.

If the rental unit is need of repair in one of these areas, the tenant has a few options available. The type of repair that is needed determines how the tenant should proceed. If the landlord either deliberately or negligently does not provide running water, including hot water, heat, or another essential service, then, after providing the landlord with written notice specifying the problem, the tenant can do one of the following:

1. The tenant can choose to pay the necessary costs to receive the essential service and then deduct those costs from the rent.
2. The tenant can find another place to live until the landlord fixes the problem and supplies the essential service. If the tenant chooses this option, the tenant does not need to pay rent until the landlord fixes the problem.
3. The tenant can sue for damages based upon the diminished value of the rental property because of the lack of necessary services.

See Neb. Rev. Stat. § 76-1427.

For all other types of necessary repairs, the tenant must give the landlord a written 30-day notice that details the repairs needed. The notice must state that the landlord has 14 days to make the necessary repairs or the lease will terminate at the end of 30 days. If the landlord has not made the necessary repair within 14 days, the tenant can move out of the rental unit at the end of the 30-day period and will no longer be responsible for paying rent (seeNeb. Rev. Stat. § 76-1425).

If the landlord decides to sue the tenant for not paying rent, or paying reduced rent as the case may be, the tenant can defend against the eviction by proving that the landlord did not make necessary repairs as required by law. For more information on the subject, see the Nolo article Nebraska Tenant Rights to Withhold Rent or "Repair and Deduct."

Landlord Evicts Tenant for Violating the Lease Agreement

Before evicting a tenant for violating the lease, a landlord must provide the tenant with a 30-day notice. The notice must give the tenant 14 days to fix the violation, or the lease will terminate at the end of 30 days. If the tenant fixes the violation within 14 days of receiving the notice, the landlord must not proceed with the eviction. If the landlord tries to evict the tenant anyway, the tenant can use evidence that the violation was fixed as a defense to the eviction.

Remember, if this is the second notice for the same lease violation within six months of receiving the first notice, the landlord does not need to give the tenant any time to fix the violation. At the end of 14 days, the landlord can file an eviction lawsuit, even if the tenant has corrected the violation (see Neb. Rev. Stat. § Neb. Rev. Stat. § 76-1431(1)).

Landlord Evicts the Tenant Based on Discrimination

The federal Fair Housing Act and the Nebraska Fair Housing Act make it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Additional Resources for Tenants in Nebraska

Legal Aid of Nebraska provides low cost or free legal services to those who qualify based on income. Legal Aid of Nebraska also provides free online resources for anyone who has questions related to landlord-tenant issues. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Finding Your Local Courthouse

Eviction lawsuits are filed with the either the district court or county court in Nebraska, depending on how much money is involved with the lawsuit. If the landlord is suing for possession, plus rent or damages over $52,000, the landlord will file the case with the district court. If the landlord is suing solely for possession, or rent or damages are under $52,000, the landlord will file the case with the county court. To find your local district court, visit this online directory. To find your local county court, visit this online directory.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Lawyer.

Also check out Nolo's Lawyer Directory for Nebraska lawyers who specialize in landlord-tenant law.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).