When is it Necessary to Record Farm Leases in Nebraska? A Quick Reminder for Landowners and Tenants
By Sean A. Minahan and Hattie Shipps
In Nebraska, it is important for both landowners and tenants to understand how farm lease agreements are treated under state law. While leases do not need to be notarized or recorded to be valid and enforceable between the parties involved, there are important exceptions that landowners and tenants should be aware of. Specifically, if the lease is for a term longer than one year. In that case, it must be acknowledged and recorded with the county clerk’s office to be enforceable against third parties or in the event of a good faith purchaser issue. This is especially relevant in agricultural leases, which are often for a term longer than one year.
Enforceability Between the Landowner and the Tenant
In Nebraska, a lease, whether it’s for a crop-share arrangement, a cash rent lease, or a typical property lease, does not need to be notarized or recorded to be enforceable between the landowner and the tenant. This is true for a lease of any length of time. This means that as long as both parties agree to the terms of the lease, it is legally binding on them. In the event of a dispute, such as a tenant failing to pay rent or violating other lease terms, the lease is enforceable. Both parties have the right to take legal action based on the terms of the lease.
While recording or notarizing a lease isn’t required to enforce it between the parties, it is still important to have a clear, written agreement that spells out both parties' rights and responsibilities, from the amount of rent to the maintenance of irrigation systems and other equipment. If a disagreement arises, having a solid lease in place can make resolving the issue fairly and legally much easier.
Enforceability to Third Parties
In Nebraska, a lease for a term longer than one year must be acknowledged and recorded with the county clerk’s office to be enforceable against "third parties," meaning anyone who might come into the picture later, such as a future purchaser. This process of recording the lease provides “notice” to the future owner or interested parties. Because farm leases often last for multiple seasons or even decades, recording the lease is crucial.
When a lease is properly recorded, it acts as a public notice that the property is subject to an existing lease agreement. This ensures that any future property purchaser is aware of the lease terms and is legally bound by them. For example, assume that a landowner has leased out 300 acres of their farm to a tenant for a long-term cash rent lease. Now assume the landowner sells off that section of their farm to a new purchaser. If the lease isn't recorded and the new owner buys the land in good faith, they may not be bound by the lease if they weren’t aware of it. However, if the lease is properly recorded, the new owner will be legally obligated to honor the terms of the lease, just as the original landowner would be. This protects both the tenant’s rights to continue farming the property for the full lease term and a new owner’s ability to take over the property without unexpected surprises.
Another example involving a third party could arise if the landowner defaults on their mortgage and the bank or lender forecloses on the property. A recorded lease acts again as "notice" to the lender that the tenant has a legal right to farm property for the remainder of the lease, even if the original landowner no longer owns the property. Without this formal notice, the lender may not be bound by the lease and could potentially take action to remove the tenant farmer.
A quick note on acknowledgment, a lease longer than one year must be acknowledged and recorded to be enforceable against a third party. Acknowledgment simply means the signer confirms in writing that they signed the lease. This can be done at any time after signing and doesn’t require a notary. The signer can acknowledge their own signature by completing an acknowledgment form. Once acknowledged, the lease can be recorded with the county clerk’s office to ensure it is legally recognized.
In short, recording a long-term farm lease protects both the tenant farmer and the landowner. It ensures that future owners, lenders, or anyone else with a legal interest in the property is aware of the lease and must honor it.
The applicable law from the Revised Statutes of Nebraska Annotated on this topic are:
§ 76-211. Deeds; execution; record.
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.
§ 76-238. Deeds and other instruments; recording; when effective as notice; possession of real estate; not effective as notice; when.
(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.
