A Nebraska purchase agreement is the written contract between a buyer and seller that sets the terms of a real estate sale, and under Nebraska law it has to be in writing and signed to be enforceable. Nebraska’s statute of frauds, at § 36-103, voids any agreement transferring an interest in land that isn’t captured in a signed writing.1Nebraska Legislature. Nebraska Code 36-103 – Interest in Land, How Created A handshake deal on a house, no matter how detailed the conversation, is not something a Nebraska court will enforce.
To satisfy the statute, the writing needs the essentials: who the parties are, a description of the property, the price, and signatures. Everything else in a well-drafted agreement — contingencies, deadlines, cost allocations — exists to protect the parties from the disputes that come up between offer and closing.
What the Agreement Must Contain
Start with the parties and the property. Name the buyer and seller exactly as they will take or convey title. For the property, a street address is not enough. Use the legal description from the existing deed or the county records so there is no ambiguity about what is being transferred. Loose property descriptions are a common source of boundary fights after closing.
State the purchase price and the payment terms. If the buyer is financing, say so, and include a financing contingency that lets the buyer cancel if the loan doesn’t come through. Cash deals should say that too.
Earnest money gets its own treatment. The deposit amount is negotiable, and most residential deals land somewhere between 1% and 5% of the purchase price. Where the money goes is not negotiable: Nebraska law requires brokers to hold earnest money in a designated trust account separate from personal or business funds.2Nebraska Legislature. Nebraska Code 81-885.21 – Trust Account Requirements The Nebraska Real Estate Commission tightens the timing: the deposit must reach the trust account within 72 hours of an accepted written offer or by the end of the next banking day, whichever is sooner.3Nebraska Real Estate Commission. Title 299 Chapter 3 – Trust Account Regulations
The contract should set out the contingencies that have to clear before closing. Three are standard in Nebraska residential deals:
- An inspection contingency, which lets the buyer hire a professional, negotiate repairs, or cancel if major issues surface.
- An appraisal contingency, which protects the buyer if the property doesn’t appraise at or near the agreed price.
- A title contingency, which gives the buyer the right to walk away if the title search turns up liens or encumbrances.
Each contingency needs a timeframe. If a contingency isn’t satisfied within the window the contract specifies, the buyer can usually cancel and recover the earnest money.
Finally, the agreement sets a closing date and handles prorations: splitting items like property taxes and utility bills between buyer and seller based on when ownership changes hands.
Seller Disclosures the Agreement Depends On
Nebraska requires sellers of residential property to deliver a written property condition disclosure statement before the purchase agreement becomes binding on the buyer. Section 76-2,120 lists what the disclosure has to cover:4Justia Law. Nebraska Code 76-2-120 – Seller Property Condition Disclosure
- Whether appliances included in the sale are in working condition.
- The condition of electrical, heating, cooling, water, and sewer systems.
- Any defects in improvements that materially affect the property’s value.
- Hazardous conditions or environmental hazards on the property.
- Title conditions such as easements, encroachments, or zoning restrictions.
- Whether utility connections are public, private, or community.
- Compliance with carbon monoxide alarm requirements.
- Any private transfer fee obligations tied to the property.
The disclosure runs on the seller’s actual knowledge. “Unknown” is a legitimate answer where the seller really doesn’t know. Deliberately hiding a known defect, though — a cracked foundation, recurring flooding, a failing septic — opens the door to rescission and damages. If something the seller already disclosed turns out to be inaccurate before closing, the seller has to update the statement.
For any home built before 1978, federal law adds a lead-based paint disclosure under 42 U.S.C. § 4852d.5Office of the Law Revision Counsel. 42 U.S. Code 4852d – Disclosure of Information Concerning Lead Upon Transfer of Residential Property The seller must disclose any known lead-based paint or hazards, hand over any available lead inspection reports, and include a Lead Warning Statement in the purchase agreement along with a signed acknowledgment that the buyer received the EPA pamphlet. Buyers get a 10-day window to arrange a lead-based paint inspection before the contract becomes binding, which the parties can shorten, extend, or waive in writing.6U.S. Environmental Protection Agency. Real Estate Disclosures About Potential Lead Hazards The requirement applies to every pre-1978 residential property, whether or not anyone suspects lead paint is actually present.
Taxes and Closing Costs the Contract Should Allocate
Nebraska charges a documentary stamp tax on real estate transfers at $2.32 per $1,000 of the property’s value, or any fraction of $1,000.7Nebraska Legislature. Nebraska Code 76-901 – Documentary Stamp Tax On a $300,000 home that comes to $696. The tax falls on the grantor, usually the seller, and the stamps attach to the deed. “Value” means the full actual consideration paid, including any liens the buyer assumes; for gift deeds or transfers for only nominal consideration, the tax runs on current market value.
Beyond the stamp tax, both parties should budget for recording fees charged by the county register of deeds, title insurance premiums, and lender charges like origination fees and appraisal costs. The purchase agreement is where you decide who pays what, so negotiate it before signing rather than fighting about it at closing.
If the deal involves a federally related mortgage, the Real Estate Settlement Procedures Act applies. Under 12 U.S.C. § 2607, no one involved in the transaction can give or accept referral fees or unearned portions of settlement charges.8Office of the Law Revision Counsel. 12 U.S. Code 2607 – Prohibition Against Kickbacks and Unearned Fees If a settlement provider is steering you hard toward specific vendors, that is worth questioning.
Title Insurance and Title Risks
Title insurance protects against defects in the property’s title — undisclosed liens, recording errors, forged documents in the chain of title, or ownership claims the title search didn’t catch. It isn’t legally required in Nebraska, but most lenders require a lender’s policy as a condition of financing, and buyers often add a separate owner’s policy. The premium is a one-time payment at closing, calculated from the purchase price. Nebraska regulates title insurers under the Title Insurers Act beginning at § 44-1981.9Nebraska Legislature. Nebraska Code 44-1981 – Title Insurers Act, Terms Defined
One title risk worth flagging specifically for Nebraska: the state’s Uniform Real Property Transfer on Death Act lets owners record a transfer-on-death deed naming a beneficiary who inherits the property when the owner dies.10Nebraska Legislature. Nebraska Code 76-3405 – Transfer on Death Deed Authorized A seller who recorded one years ago and forgot about it can create a competing ownership claim. Make sure the title search catches it.
Environmental Contingencies
For properties with any industrial or agricultural history, environmental risk belongs in the agreement. Include an environmental contingency giving the buyer the right to cancel or renegotiate if testing reveals contamination. Without one, a buyer who discovers pollution after closing owns both the property and the cleanup obligation, because current owners can face strict liability for cleanup costs under the federal CERCLA statute even if they didn’t cause the problem.11U.S. Environmental Protection Agency. Comprehensive Environmental Response, Compensation, and Liability Act and Federal Facilities
A Phase I environmental assessment reviews historical use and public records. If that raises concerns, a Phase II assessment involves actual soil and groundwater testing. The Nebraska Department of Environment and Energy also runs a Voluntary Cleanup Program that lets owners, buyers, and developers investigate and remediate contaminated sites under state oversight, which can make an otherwise unusable property viable.12Nebraska Department of Environment and Energy. Voluntary Cleanup Programs
If Someone Breaks the Contract
When one side walks away from a signed Nebraska purchase agreement, the other side has a few options.
Compensatory damages measure the gap between the contract price and the property’s market value at the time of the breach. If a seller backs out of a $300,000 deal and the buyer pays $340,000 for a comparable property, that $40,000 difference is the compensatory award.
Specific performance is where Nebraska courts frequently land in real estate disputes. Because land is treated as unique, money alone often can’t make the injured party whole, and a court can order the breaching party to go through with the sale as agreed. This comes up most often when a seller tries to back out after signing.
A liquidated damages clause sets a fixed amount in advance — often the earnest money — as the sole remedy if the buyer defaults. Nebraska courts enforce these only when the amount is a reasonable estimate of the anticipated harm at the time the contract was signed. A clause that looks like a penalty will not survive review.
The accused party has defenses available. Mutual mistake can rescind the contract when both sides shared an incorrect belief about something fundamental to the deal. Fraudulent misrepresentation lets a buyer unwind the contract if the seller knowingly provided false material information. Lack of capacity — a minor, a party under guardianship, or someone with a court-declared mental incapacity — can also void the agreement, though title companies and lenders usually catch capacity issues before closing.
Special Situations: 1031 Exchanges and Foreign Sellers
Two federal tax rules occasionally reshape a Nebraska purchase agreement and are worth knowing about if either applies.
A like-kind exchange under IRC Section 1031 lets investors defer capital gains tax by rolling proceeds from one investment property into another qualifying property, with 45 days to identify replacement properties and 180 days to close.13Internal Revenue Service. Like-Kind Exchanges – Real Estate Tax Tips It applies only to investment or business property, not a personal residence. If you are using one, the purchase agreement needs to reflect the exchange structure, and any closing delay can cost the entire tax benefit.
When the seller is a foreign person, the Foreign Investment in Real Property Tax Act requires the buyer to generally withhold 15% of the amount realized on the sale.14Office of the Law Revision Counsel. 26 U.S. Code 1445 – Withholding of Tax on Dispositions of United States Real Property Interests The buyer is personally liable if they fail to withhold, so confirming the seller’s U.S. tax status before closing is a requirement with real financial consequences.15Internal Revenue Service. FIRPTA Withholding