Jan E. Beran, Attorney at Law

Attorney at Law

Suite 100 McArthur Park, 3940 Cornhusker Hwy.
Lincoln, NE 68504
Phone: (402) 466-7110 -:- URL: http://www.beranlaw.com
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Lecture Topics REOMA January 22, 2004 meeting

How Much Do You Save By Doing Things Right?
  1. What happens when things go wrong?
    1. Damages
    2. Penalty Provision
    3. Court Costs and Attorney Fees
    4. Your losses (rent, time, defense efforts)
    5. Particular Provisions in Landlord Tenant Law
      1. Actual Damages
        1. 76-1415 Deliberate use of a prohibited provision in lease
        2. 76-1427 Failure to supply heat, water, hot water, or essential services.
        3. 76-1432 Absence and abandonment
        4. 76-1435 Breach of lease
        5. 76-1438 Landlord's abuse of access
        6. 69-2312 Landlord retaining [tenant's] personal property
      2. Return of Security Deposit
        1. 76-1416 Failure to return or account for security deposit within 14 days after demand
        2. 76-1430 Landlord's wrongful eviction if rental agreement is terminated
      3. "Penalty" type provisions: One Month's Rent
        1. 76-1438 Landlord's abuse of access. No less than 1 month rent
      4. "Penalty" type provisions: Three-month's rent
        1. 76-1418 Failure to supply possession of premises at commencement of term.
        2. 76-1426 Failure to supply possession of premises at commencement of term.
        3. 76-1430 Constructive or actual (wrongful) eviction
        4. 76-1437 Willful holdover without landlord's consent
      5. Court costs & Attorney fees
        1. 76-1415 Deliberate use of a prohibited provision
        2. 76-1416 Failure to return deposit
        3. 76-1425 Willful noncompliance by landlord affecting habitability
        4. 76-1426 Failure to supply possession of premises at commencement of term.
        5. 76-1427 Failure to supply heat, water, hot water, or essential services.
        6. 76-1428 Meritless defense or counterclaim lacking good faith
        7. 76-1430 Constructive or actual (wrongful) eviction
        8. 76-1431 Willful failure to pay rent or non-compliance by tenant
        9. 76-1435 Breach of rental agreement
        10. 76-1437 Willful holdover without landlord's consent
        11. 76-1438 Abuse of access
        12. 69-2312 Landlord Retaining [Tenant's] Personal Property
  2. Random Issues
    1. Abandonment
    2. Soldiers & Sailors
    3. Types of Service
    4. Security Deposits
    5. Mitigation of Damages
    6. Service Animals
  3. Overview of Eviction Process (time permitting)
    1. Notices & Waiver
    2. Holdover
    3. Eviction Process
  4. Landlord Tenant Law Updates
    1. Tighe v. Cedar Lawn, Inc., 11 Neb. App. 250; "a lessor is bound to exercise reasonable care in keeping premises used in connection with but not demised to the lessee reasonably safe for those having lawful occasion to use them for the purpose for which they were intended." "In the absence of an express agreement to the contrary, a lessor does not warrant the fitness or safety of the premises and the lessee takes them as he or she finds them"
    2. Blankenau v. Landess, 261 Neb. 906; "A cause of action to recover possession of real property from a tenant who remains in possession without the landlord's consent after a lease has expired or been terminated under Neb. Rev. Stat. § 76-1437 (Reissue 1996) is an action for the possession of real property, and is therefore subject to the 10-year statute of limitations as provided in Neb. Rev. Stat. § 25-202 (Reissue 1995). " "Generally, the owner of leased property may sell the property, and such grant conveys the landlord's interest in the lease"
    3. McCombs Realty v. Western Auto Supply Co., 10 Neb. App. 962; The defense in forcible entry and detainer actions may be equitable as well as legal, and the tenant will be relieved from the technical forfeiture when absolute good faith is shown and the circumstances call for the exercise of equitable principles in his or her behalf to prevent gross injustice.
    4. Gans v. Parkview Plaza Partnership, 253 Neb. 373; "Although a landlord is not an insurer of a tenant's safety, a landlord has a duty to protect a tenant against the foreseeable criminal acts of third persons." "While liability is to be imposed only where there has been a history of criminal activity such as to make it foreseeable that such activity would occur in the future, it does not necessarily follow that the prior similar criminal activity must have taken place at the premises; it is required only that the criminal act or acts occurring near the premises in question give notice of the risk that crime may travel to the premises of the business owner."
    5. S. N. Mart, Ltd. v. Maurices Inc., 234 Neb. 343 Landlord has an obligation to mitigate damages. When a tenant vacates the premises prior to the expiration of the term, the Landlord must make reasonable attempts to re-let the premises so vacated.


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