Delaware Eviction Laws: Process & Guide for Landlords in 2022
Delaware Eviction Laws: Process & Guide for Landlords in 2022
Having worked so hard to build a portfolio of homes that can be rented, you have every reason to be proud of the business you've made. You probably have property managers who take care of your tenants' needs. Also, you've made sure that your properties in Delaware are as appealing as possible to people who live there.
All of that effort is wasted, though, if and when you end up having to evict the tenant.
There are a lot of different scenarios that could result in you having to evict someone from one of your rental houses. But regardless of the motivation behind your decision, evicting someone is not as straightforward as just informing them they have to vacate the premises. In order to successfully evict a tenant in Delaware, you need to adhere to a number of the state's laws.
In this article, we explore the Delaware eviction process, explain how to file an eviction notice in Delaware, and make you aware of the eviction laws in DE that you need to follow at all times.
Grounds for Eviction in Delaware
As mentioned before, there are a variety of circumstances under which a property investor may want to initiate eviction proceedings. Delaware law can serve to protect either the landlord or the tenant, depending on the circumstances. Possible reasons for eviction are listed below; however, there are legal considerations for each of them that must be taken into account before proceeding with an eviction.
Reason No. 1 – Failure to Pay Rent
In certain situations, Delaware landlords can evict tenants who haven't paid their rent. After a missed payment, you must give the tenant a 5-day notice before you can start the eviction process. This notice gives the tenant a chance to pay up before you start the process.
According to eviction laws in Delaware, this notice must include the following information:
- A statement telling the tenant they have 5 days to pay the overdue rent or move out of the rental property.
- Notice that you will terminate the lease if the tenant doesn’t undertake one of these two activities.
- Information related to how the landlord can file for an eviction lawsuit in court if the rent isn’t paid or the tenant doesn’t move out within 5 days.
If your tenant fails to pay or vacate, you must submit a summons and complaint with the court to initiate the Delaware eviction process. The summons and complaint, however, are not certainties that you will be able to remove your tenant. The tenant receives a copy of both, as well as a deadline for filing an answer with the court.
That deadline is crucial.
According to Delaware's eviction laws, a tenant who pays the past-due rent by the answer date, plus any applicable interest or court costs, cannot be evicted.
Reason No. 2 – Illegal Activity
If you find that your tenant is engaging in any illegal behavior, Delaware eviction laws specify that you can give your tenant a written seven-day notice to leave the premises. This is especially true for tenants who pay their rent on a weekly or daily basis. Depending on the county in which your property is located, the notice time for tenants with written leases may be longer.
Examples of acts that warrant eviction include, but are not limited to:
- Consumption, distribution, or creation of illegal controlled substances, such as narcotics and some types of alcohol
- Possession of an illegal firearm
Keep in mind that these rules apply to co-residents and guests as well. If someone does something illegal on a property that is rented, you probably still have a reason to kick the tenant out, even if they themselves didn't do it.
Reason No. 3 – Non-Renewal of the Lease
By law, you can't evict a tenant in Delaware without a good reason. In an ideal situation, this means that the tenant will follow their lease agreement to the letter until that agreement is up. If they follow your rules, they can stay until the end of the agreement. If you don't extend or renew the lease, the tenant must leave the property by the end of the agreement.
This is important because not all tenants are under a lease. Some are at-will tenants who pay rent on a month-to-month basis.
In the case of an at-will tenancy, eviction must be informed at least 60 days in advance. Tenants at will are subject to the same rules and regulations and must give you at least 60 days' notice before they move out.
If you have a tenant who is under a lease, the at-will laws may also apply. You have the option of transitioning the tenant into an at-will agreement once the lease has ended. If the tenant agrees to this, you will be required to comply with the notice requirement of thirty days if you decide to evict them from the property.
Reason No. 4 – Lease Violations
With a tenant on a lease, you and the tenant are bound by the terms of the lease, which serves as a legally binding contract. Typically, the end of the agreement involves preserving the property in a habitable condition. In addition, it may specify any rent hikes or tenant options that will be available upon the lease's expiration.
On the tenant's side, the lease agreement says how the tenant should treat your property. You'll probably include rules about proper maintenance, pets, smoking, and other things. Usually, letting other people live in the property without your permission is also a lease violation. If the tenant breaks any of the rules in the lease, you may be able to use Delaware's eviction laws to evict them.
You are obligated to give notice if you want to evict someone for breaking the lease. But Delaware's eviction laws aren't clear about when you need to give this notice. The law doesn't say how much notice you have to give a tenant before evicting them for breaking the lease. Instead, the agreement itself says how long you have to give notice. If your lease doesn't say how long you have to give notice, most leases default to a minimum of seven days' notice.
The Delaware Eviction Process – A Step-By-Step Guide
Different things affect how an eviction is handled in Delaware. The amount of time you have to give notice depends on the type of tenancy. The reason for the eviction and any rules or laws you have to follow in your town or city may also change the process. Still, when evicting a tenant, you'll probably follow some general steps. Here, we list these general steps and talk about how long the eviction process usually takes in Delaware.
Step No. 1 – Send a Notice to Comply
A notice to comply is a written document used to request that a tenant perform an action that could save their tenancy. Using late payment as an example, the notice to comply is the 5-day period in which the tenant must pay the rent.
When filing this notification, it is best to consult with an attorney. This ensures that you complete the process appropriately and that your tenant cannot use an illegitimate notice to comply as a justification to refuse to leave. Before filing an official complaint, make sure you sign and date the notice to demonstrate that you followed Delaware eviction laws.
It should be noted that you cannot remove a tenant who complies with the notice's requirements.
Step No. 2 – File a Complaint
The official start of the Delaware eviction process is the filing of a complaint with the court. Before submitting this complaint, you may need to provide your tenant the opportunity to resolve the situation that prompted the complaint. Overdue rent payments are an excellent example because you must give the tenant 5 days to pay before filing with the court.
Once you file, both the complaint and a summons get delivered to your tenant. You'll also need to submit other documents as evidence for the complaint, including:
- A copy of the Notice to Quit document you served to the tenant
- Your copy of the Return of Service
Lastly, you must pay the fees to submit the complaint, which range between $120 and $180 depending on where you file. In general, you have between seven and thirty days to file a complaint following the issuance of a notice to vacate to a tenant.
Step No. 3 – Serve the Tenant
Before filing your case with the proper justice court, a court officer must serve your tenant with the necessary documentation. There are many ways to go about this:
- The official may post the documents to the tenant themselves. This involves leaving the documents in a visible and secure place where the official can reasonably expect your tenant to see them.
- Some officials choose to serve documents to the tenant in person, which means they have first-hand proof that the tenant received them.
- Your court official might mail the documents using first-class mail. As this comes with the risk of the tenant claiming they didn’t receive the documents, the official uses return of service as part of this process.
You must allow a court officer to handle this procedure. Landlords or their attorneys cannot personally serve tenants with eviction papers in Delaware.
In terms of the Delaware eviction process timeline, the documents need to be given to the tenant between seven and thirty days before they are sent to the court. So, the tenant may not get their summons until up to a month after you start the complaints process.
Step No. 4 – Ask for Possession
After the tenant has been served with the eviction notice, you will be in a position to request ownership of your property. This requires submitting a motion in order to get a judgment for possession of the property. This includes sharing the reasons for the eviction. In order to demonstrate that you are acting reasonably and have a good reason for asking your tenant to vacate the property, you will need to present convincing evidence. This can include bank statements that show a lack of payment, physical evidence that the law was broken or that the lease was broken, and copies of the notification paperwork that you provided before beginning the complaint.
Delaware eviction laws favor the landlord if the tenant does not appear for the court hearing regarding this request. In the event of your absence, the motion will be postponed for a week.
If your tenant doesn't show up, you can go straight to Step 6. But many tenants will respond to the summons and provide their own evidence to show that they don't agree with your motion for possession.
Step No. 5 – Going to Court
If your tenant appears at the hearing for the motion to acquire a judgment, a court date will be set. In this case, the eviction laws of Delaware benefit the tenant because they are not required to provide a direct response at the hearing. As long as they appear, a court date is scheduled. Even then, the majority of courts encourage tenants to file a written response to the motion within seven days after the documents' filing.
If the tenant does not respond in writing within seven days, the hearing is postponed for another week.
Assuming the tenant responds correctly and decides to take the case to court, you must present the following proof to support your argument:
- Photographic or video evidence
- Rent receipts
- Bank statements
- Copies of your lease and deed
In Delaware, eviction hearings follow a set schedule. You typically have to wait between 10 and 16 days for the eviction hearing after submitting your complaint and summons. The third Tuesday or Wednesday following the filing date, or the second Monday, Thursday, or Friday, will be set aside by the court for this hearing.
Step No. 6 – Regain Possession
You should be able to evict your tenant if you have a solid enough cause. You also win if the tenant fails to appear at the eviction hearing or fails to respond to their summons.
The tenant has the right to file an appeal for reconsideration following a defeat. If this does not occur, the court issues an execution warrant 10 days following your victory.
The Writ of Execution states that the tenant must leave the property. But it also gives them at least 10 days from the date the writ is issued to do so. A law enforcement officer gives the writ to the tenant between 9 am and 5 pm on a weekday. On holidays and weekends, officers can't deliver writs. The tenant has 48 hours to leave your property after getting the writ.
If a tenant refuses to leave voluntarily, the authorities may do this by force. But you should never become involved on your own. If you become involved, you run the risk of using an unlawful eviction method that will land you in trouble with the law.
This step is expected to take about ten days, however there are two circumstances that could push it to take longer:
- The tenant leaves their belongings behind
- Stays of Execution
Leaving Belongings Behind
Delaware's eviction laws do not specify what should be done with the tenant's personal belongings should they be left behind. To be safe, it's best to give the tenant a chance to retrieve their possessions before selling or throwing them away.
Together with a lawyer, establish a fair window of time during which your former tenant may retrieve their possessions. Make direct contact with the tenant to let them know about this time frame and what will happen to their possessions if they don't claim them. You should be able to sell or get rid of the items once the deadline has passed.
Consider including a term in your lease contract to avoid these potential problems. This section should inform potential tenants about the actions you will take with any possessions they leave behind.
Stays of Execution
The elderly or disability eviction laws in DE may subject you to a stay of execution. If a tenant with a disability or over the age of 60 successfully files for a Stay of Execution, they gain an additional 12 months to depart your property. Tenants who do not match the age or handicap standards may also petition for a Stay of Execution, but they will only be granted six months if their application is approved.
A judge will decide whether or not your tenant should get a Stay of Execution.
Explaining the COVID-19 Moratorium
The COVID-19 moratorium was made by the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) in 2020. As a precaution against the spread of COVID-19, the agency issued an order suspending all evictions for residential properties. And it helped tenants who may have had trouble making their rent payments during a time when many people were experiencing job insecurity.
The initial order went into effect on September 4, 2020, and remained in effect until the end of the year on December 31, 2020. After that, it was granted a few extensions, which ultimately led to it being in effect until August 26, 2021.
Most Delaware municipalities are now exempt from the ban. For that reason, it should not serve as an obstacle in the process of evicting a tenant. But before you start the eviction process, you should talk to an attorney and check with local government officials to make sure there are no local moratoriums in place.
Eviction Defenses in Delaware
The process of eviction is one that a tenant can defend themselves against in a number of different ways. In certain situations, the tenant may be able to use the eviction laws in Delaware to successfully challenge your decision to evict them.
Defense No. 1 – Payment of Overdue Rent
The most obvious argument for a tenant facing eviction for nonpayment of rent is to pay the back rent plus any applicable fines. The tenant has until the response date on the summons and complaint to make these payments. If your tenant does make this payment, you must give them a receipt showing the day and time the transaction occurred. If landlords try to evict tenants after they've paid past due rent, tenants can show these invoices as proof that they've already done so.
Defense No. 2 – The Fit and Habitable Defense
Tenants who don't pay rent can use the fact that you don't keep your property in good shape as a defense against being evicted.
According to Delaware eviction laws, your rental property must adhere to all current sanitation and building codes. It must also not pose a threat to the safety, health, or well-being of the tenant. The delaware.gov website gives in-depth details regarding the requirements your rental property must follow.
You also have obligations to meet if the tenant points out maintenance issues on your property. You have five days after getting written notice from the tenant to arrange for a repair and 14 days to finish the work. If the repair is not completed, the tenant has the right to do the repairs themselves and subtract the cost from their rent. However, if the demand for repairs reaches that point, you will face more serious issues relating to your building's standards.
Defense No. 3 – The Landlord Uses a “Self-Help” Eviction
You cannot evict a tenant on your own, according to Delaware eviction laws. You can't just show up at your rental and demand that a tenant vacates. It's also unlawful to take any actions, like changing the locks or turning off the utilities, that make it impossible for the tenant to enter the home or render it uninhabitable.
A court order must be obtained before evicting a tenant.
Failure to do so allows your tenant to sue you for damages. In some situations, the tenant may even be able to reclaim the rental property. In particular, you may be obliged to pay a fine ranging from $25 to $300, as well as damages equal to three months' rent. Particularly harsh self-help evictions can potentially result in the landlord getting a six-month prison sentence.
Defense No. 4 – Discrimination
It is prohibited under the Fair Housing Act to evict a tenant for any discriminatory reason. This means a tenant can use discrimination as a defense to eviction if they believe they are being asked to leave based on any of the following grounds:
- National origin
- Familial status
The Fair Housing Act is backed by the Delaware Antidiscrimination Law, which also protects against discrimination in a number of other ways:
- Visual impairment
- Hearing loss
- Armed forces or veteran status
- Genetic information
- Sexual orientation
Oddly enough, lead paint is covered by Delaware's anti-discrimination laws. But not in the way you might expect. Rather than making it illegal to rent a property with lead paint, the law prohibits you from rejecting a tenant on the basis of the presence of lead paint. This is the case even if the tenant has children. If you try to evict the tenant in such a situation, the tenant may raise the "fit and habitable" defense. The easiest method to protect yourself against this defense is to make sure your home does not have any lead paint.
Defense No. 5 – Failing to Follow the Delaware Eviction Process
When trying to comply with the requirements of the eviction process in Delaware, landlords run the risk of making a number of critical errors. The most typical mistake is not providing adequate notice. For example, a tenant can use this defense if you don’t provide them with 14 days to make good on a missed rent payment.
This argument, however, may also apply to other actions, such as improperly serving the tenant or presenting insufficient evidence in court. Tenants are not guaranteed victory by using this defense. Most often, this only serves to postpone the eviction while the landlord fixes any procedural flaws. For example, you may be able to fix notice issues by providing the appropriate notice before filing a new complaint.
When Should You Hire an Experienced Lawyer?
This is a hard question to answer because many landlords think they can win eviction cases based on the evidence alone. Even though that might be true, you should still hire a lawyer. Attorneys know how Delaware's eviction laws work and can make sure you always follow the right steps.
Additionally, engaging an attorney is not something you should just do when evicting a tenant. Before making your property available for rent, it is also wise to consult with an attorney. A competent attorney can assist you in drafting lease agreements that specify how a tenant should respect your property and the steps you will take in the case of an eviction-worthy occurrence. This documentation ensures that the tenant cannot claim ignorance of any of the grounds for eviction you may cite in your complaint.
In addition to these situations, it's a good idea to hire an experienced lawyer when:
- Your tenant files for bankruptcy
- The tenant has their own lawyer
- This is the first time you’ve had to evict somebody
- You’re working within the confines of a housing or rent control program
- Your tenant is also an employee who you’re firing from your company
If you're wondering when you should consult an attorney, the answer is before you issue any kind of notice to your tenant. An attorney can help you create the proper notice, guide you through the steps of the eviction procedure in Delaware, and make sure you include all the required information.
Frequently Asked Questions
Can a Landlord in Delaware Evict a Tenant for Any Reason They Want?
It is dependent on the kind of tenancy that is being held.
Usually, if there is a lease in existence, you'll need a good reason to break it. Among these are nonpayment of rent, lease infractions, and criminal conduct. The tenant cannot be simply evicted if they have not committed any violations of the lease. Instead, you must wait until the lease term is up.
For tenants who are "at-will", these Delaware eviction laws change. You can evict a tenant at will for any reason or no reason at all, as long as you give the right amount of notice.
When Does the Delaware Eviction Moratorium End?
As a result of the coronavirus outbreak, a moratorium on evictions was enacted in Delaware. It protected tenants against eviction under certain situations, such as unemployment-related inability to pay rent.
The United States Supreme Court ruled that the . However, some Delaware cities and municipalities may still have moratoriums in place. Check with your local government agency to ensure that the moratorium no longer applies to your property.
How Long Does It Take to Evict a Tenant at Will in Delaware?
You must provide 30 days written notice to evict a tenant at will in Delaware, assuming the tenant isn’t being evicted due to the grounds for eviction mentioned previously. As a result, evicting a tenant at will usually takes at least 30 days. In situations when the tenant has broken the law inside your home, this may be reduced to seven days.
Can I Force a Tenant to Move Out in Delaware?
In general, if you have a lease agreement in place, you cannot force a tenant to leave your property. That agreement is a legal contract that must be followed by both you and your tenant. You have no legal grounds to ask the tenant to leave if they haven't submitted grounds for eviction.
Attempting to evict a tenant without sufficient property notice constitutes a breach of the tenancy agreement. If you desire to evict a tenant from your property, you may face legal ramifications for doing so; therefore, you should get legal counsel.
Understand Delaware Eviction Laws
Landlords can turn their properties into a steady source of passive income by renting them out. But if you try to do that without knowing the different eviction laws in Delaware, you could run into trouble when you need to evict a tenant from one of your properties.
In Delaware, following the proper eviction procedures is essential.
Inadequately following the necessary steps provides the tenant with a defense that they can utilize to justify extending their tenure in your property. These counterarguments may, in certain circumstances, be powerful enough to render void the complaint that you file against the tenant. You can make certain that the necessary procedures are followed and that you have a valid case for eviction if you collaborate with a professional attorney throughout the course of the eviction process. In addition, having the tenant consult with an attorney during the drafting process of the lease agreement helps ensure that the tenant is aware of their rights as well as the possible consequences that may result from a violation of the agreement.
My name is Nick Caucci and I help run the Rentroom blog. Over the years, I have seen and helped many different property managers and owner-operators streamline their daily, weekly, monthly, and yearly workflows.