An Omaha business owner signs a five-year lease for retail space on a landlord’s standard form, assuming Nebraska law gives tenants the same protections that apply to an apartment rental. It does not. Commercial leases in Nebraska are governed almost entirely by the written contract itself, not by a consumer-protection statute, which means the document a business signs is doing far more legal work than most owners realize when they sign it.
If you are negotiating, signing, or disputing a Nebraska commercial lease, Horgan Law LLC can help. Call 402-965-0652 or visit our contact page before you sign.
Why Nebraska’s Residential Landlord-Tenant Protections Do Not Apply
Nebraska’s Uniform Residential Landlord and Tenant Act, Neb. Rev. Stat. §§ 76-1401 to 76-1449, governs dwelling units, not office, retail, warehouse, or industrial space. Neb. Rev. Stat. § 76-1408 lists the arrangements the Act excludes, among them transient hotel and motel stays, agricultural tenancies, and residential leases of five years or more, but the Act’s exclusions and its core “dwelling unit” definition are built around housing. A business tenant leasing commercial space sits outside that statute’s protections, which means there is no statutory implied warranty of habitability and no statutory cap on security deposits for commercial space. The written lease, read together with applicable Nebraska statutes and common law such as the forcible entry and detainer notice requirement discussed below, is central to the parties’ obligations in a commercial deal.
The Writing Requirement: Neb. Rev. Stat. § 36-105
Nebraska’s statute of frauds, Neb. Rev. Stat. § 36-105, voids a lease of land for more than one year unless the lease, or a written note or memorandum of it, is signed by the party making the lease. Nebraska courts have applied this strictly. In Gibbons Ranches v. Bailey, 289 Neb. 949 (2015), the Nebraska Supreme Court upheld a series of multi-year leases, holding that where a lease calls for rent paid in money, the rent amount is an essential term the written memorandum must contain for the lease to satisfy the statute. In Pallas v. Black, 226 Neb. 728 (1987), the court enforced an informal signed letter because it identified the parties, the subject matter, and the material promises with reasonable certainty, and was signed by the party to be charged. For a commercial tenant or landlord, the lesson from both cases is the same: a term sheet, email exchange, or letter of intent can potentially satisfy the writing requirement, but only if it clearly identifies the parties, the property, and the material terms such as rent; a document that leaves those out is at risk if either side later wants out of a multi-year lease.
Longer leases generally require a signed writing containing those essential terms, though a related writing, part performance, or an agreement of one year or less made at the time it is signed can present fact-specific exceptions worth raising with counsel rather than assuming away. A business that operates for years on a handshake renewal, rather than a signed amendment, carries more risk than it may realize if a dispute ever reaches a Nebraska court.
What a Nebraska Commercial Lease Should Address
Because the written lease carries essentially all the legal weight, a Nebraska commercial lease should address, in the document itself:
- Rent structure and escalation, including any percentage rent, common area maintenance (CAM) charges, and the formula for annual increases. Commercial rent is not capped by state law, and as of September 3, 2025, Neb. Rev. Stat. § 13-331 generally bars local governments, including under home rule charters, from adopting their own rent control ordinances on private property, subject to the statute’s own exceptions for other state-law authorization and specified affordable-housing or voluntary rent-restriction programs.
- Maintenance and repair obligations, allocated expressly between landlord and tenant, since no statutory warranty of habitability fills the gap for commercial space.
- Default and cure periods, stated with specific day counts rather than left to “reasonable time” language that invites a dispute over what reasonable means.
- Assignment and subletting rights, particularly if the tenant may sell the business or needs flexibility to downsize space during the lease term.
- Renewal options and notice deadlines, in writing, with the rent or rent-setting mechanism for the renewal term spelled out so a later dispute does not turn into its own statute of frauds problem under Neb. Rev. Stat. § 36-105.
What Happens When a Commercial Tenant Defaults
When a Nebraska commercial lease breaks down, the landlord’s remedy to regain possession runs through Nebraska’s forcible entry and detainer statute, Neb. Rev. Stat. § 25-21,219, which gives district and county courts jurisdiction over a tenant who holds possession unlawfully after the landlord is entitled to it. That statute expressly excludes possession actions governed by the residential and mobile home landlord-tenant acts. Before filing, the landlord must serve a written notice to vacate at least three days in advance under Neb. Rev. Stat. § 25-21,221. In a forcible entry and detainer action, the court can also resolve unpaid rent and property damage claims between the parties as part of the same case, but the action decides only the right to possession, not title to the property, so a dispute that turns into a title fight has to be brought elsewhere.
A lease clause authorizing self-help, such as changing the locks or seizing the tenant’s property without a court order, does not by itself make that kind of self-help lawful; Nebraska courts have required a landlord to use the available legal process to recover possession rather than acting unilaterally, even where the lease purported to allow reentry. Bass v. Boetel & Co., 191 Neb. 733 (1974); Polley v. Shoemaker, 201 Neb. 91 (1978). A commercial lease that specifies its own default notice period and cure period, consistent with that legal process, gives both sides a clearer path than falling back on the bare statutory minimum, and it reduces the chance that a routine late payment turns into litigation.
Good Faith and the Limits It Does Not Fill
Nebraska law recognizes an implied covenant of good faith and fair dealing in every contract, including commercial leases, but that covenant does not rewrite the lease’s substantive terms or substitute for a term the parties left out. It constrains how each side exercises the discretion the lease actually gives it, such as a landlord’s approval right over a proposed subtenant, rather than creating new rights the written lease does not contain. Businesses should not count on the implied covenant to repair a lease that is silent on a material point; the fix for that is to negotiate the term before signing, not to litigate its absence later.
Negotiating Leverage: What Tenants and Landlords Each Overlook
Because Nebraska supplies so little statutory default, both sides of a commercial lease negotiation tend to overlook the same handful of issues until a dispute forces the question. Tenants frequently sign CAM reimbursement clauses without asking for an audit right. A CAM audit clause gives the tenant access to the landlord’s records needed to verify shared building expenses; without it, checking those charges is harder, and what a tenant can do about a disputed charge depends on the lease’s own terms and the facts. Landlords frequently accept a tenant’s requested exclusivity or use restriction without capping how it applies to future re-tenanting of the building, which can make an empty space next door harder to lease later. A build-out or tenant improvement allowance should state, in dollars and in writing, the payment conditions, who owns the improvements at lease end, and whether the tenant must remove them, since any amendment to those terms raises its own writing and essential-terms questions under Neb. Rev. Stat. § 36-105.
A guaranty from a business owner, common for a newer company without an established credit history, should be reviewed with the same care as the lease itself. A business sale does not automatically resolve the seller’s personal guaranty exposure; whether the guaranty survives, and for how long, depends on the guaranty’s own terms, any written release negotiated as part of the sale, and applicable Nebraska guaranty defenses, all of which should be reviewed before the sale closes rather than after.
Frequently Asked Questions
Does a Nebraska commercial lease agreement need to be in writing?
A commercial lease for more than one year generally must be in writing and signed to be enforceable for its full term, under Neb. Rev. Stat. § 36-105. A lease agreed and performed within the first year, or one supported by a qualifying written memorandum or part performance, can present fact-specific exceptions, which is why a lease at risk of falling into this gap should be reviewed by counsel rather than assumed enforceable.
Is there a cap on commercial security deposits in Nebraska?
No. Nebraska’s statutory security deposit caps apply to residential tenancies under the Uniform Residential Landlord and Tenant Act, not to commercial leases. The deposit amount and any conditions on its return are matters of negotiation in the lease itself.
Can a Nebraska city impose rent control on commercial property?
Generally no. Neb. Rev. Stat. § 13-331, effective September 3, 2025, bars local governments, including those operating under home rule charters, from adopting their own rent control ordinances on private property, subject to the statute’s exceptions for other state-law authorization and specified affordable-housing or voluntary rent-restriction programs.
What notice is required before a commercial eviction in Nebraska?
The landlord’s remedies depend first on the lease’s own default and cure provisions. To regain possession through court, the landlord must serve a written notice to vacate at least three days in advance under Neb. Rev. Stat. § 25-21,221, then bring a forcible entry and detainer action under Neb. Rev. Stat. § 25-21,219 if the tenant does not vacate. That action can resolve possession and the rent owed, but not a separate title dispute.
Can a verbal agreement to renew a Nebraska commercial lease be enforced?
It depends on the term and the facts. A renewal of one year or less can be oral and enforceable. A longer renewal generally needs a signed writing or informal memorandum that identifies the parties, the property, and material terms such as rent, the same standard Nebraska courts apply to real estate contracts generally under Neb. Rev. Stat. § 36-105; Pallas v. Black applied that standard to enforce a signed letter in a real estate sale. A longer renewal without any such writing is at serious risk of falling within the statute of frauds discussed above.
Review Your Commercial Lease Before Signing
Nebraska gives commercial tenants little statutory safety net, so the lease document itself carries most of the legal weight. A review before signing, covering rent structure, maintenance obligations, default remedies, and renewal rights, can identify ambiguous or one-sided terms before they lead to a dispute.
Horgan Law LLC represents Omaha-area landlords and tenants in negotiating, drafting, and litigating commercial leases. Call 402-965-0652 or visit horganlawfirm.com/contact-us to schedule a consultation; bring the proposed lease, any amendments, CAM statements, and guaranty documents. See also our related guidance on Nebraska easement laws, our real estate law and contract review pages, and our practice areas page.