§ 76-856 — Rights of secured lenders; limitations; restrictions on lien

(a) The declaration may require that all or a specified number or percentage of the mortgagees or beneficiaries of deeds of trust encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but such a requirement shall be enforceable only as to matters involving the subdivision of any unit and the creation of any timeshare or as to proposed amendments to the declaration that adversely affect the priority of the mortgagee's or beneficiary's lien or the mortgagee's or beneficiary's rights to foreclose its lien by judicial or nonjudicial means, or that otherwise materially affect the rights and interests of the mortgagee or beneficiary and no requirement for approval may operate to (i) deny or delegate control over the general administrative affairs of the association by the unit owners or the executive board, or (ii) prevent the association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds except pursuant to section 76-871 . The declaration may not provide that a lien on a member's unit for any assessment levied against the unit relates back to the date of filing of the declaration or that such lien takes priority over any mortgage or deed of trust on the unit recorded subsequent to the filing of the declaration and prior to the recording by the association of the notice required under subsection (a) of section 76-874 .
(b) In securing approval from a mortgagee or beneficiary of a deed of trust for a proposed amendment to a declaration, the association shall be entitled to rely upon public records to identify the holders of outstanding mortgages or beneficiaries of deeds of trust. The association may use the address provided in the original recorded mortgage or deed of trust document, unless there is a different address for the holder of the mortgage or beneficiary of the deed of trust in a recorded assignment or modification of the mortgage or deed of trust, which recorded assignment or modification shall reference the official records book and page on which the original mortgage or deed of trust was recorded. Once the association has identified the recorded mortgages or deeds of trust of record, the association shall, in writing, request of each unit owner whose unit is encumbered by a mortgage or deed of trust of record any information the owner has in the owner's possession regarding the name and address of the person to whom mortgage or deed of trust payments are currently being made. Notice shall be sent to such person if the address provided in the original recorded mortgage or deed of trust document is different from the name and address of the mortgagee or assignee of the mortgage or beneficiary or assignee of the deed of trust as shown by the public record. The association shall be deemed to have complied with this requirement by making the written request of the unit owners required under this subsection. Any notices required to be sent to the mortgagees, beneficiaries, or assignees under this subsection shall be sent to all available addresses provided to the association.
(c) If any mortgagee or beneficiary of a deed of trust encumbering a unit has been requested by certified mail, return receipt requested, to approve a proposed amendment to a declaration, and such mortgagee or beneficiary fails to approve or object to such request in writing delivered to the requestor by certified mail within sixty days after the date such request has been received by the mortgagee or beneficiary, such failure to respond shall be deemed approval to the amendment.
(d) Any amendment adopted without the required approval of a mortgagee or beneficiary of the deed of trust shall be voidable only by a mortgagee or beneficiary who was entitled to notice and an opportunity to approve. An action to void an amendment shall be subject to the statute of limitations beginning five years after the adoption of an amendment to a declaration. This subsection shall apply to all mortgages, regardless of the date of recordation of the mortgage or deed of trust.

Legislative History

Source: Laws 1983, LB 433, § 32; Laws 2013, LB442, § 4; Laws 2024, LB1073, § 29.