Evicting a tenant in Delaware is called a Summary Possession. Delaware summary possession action varies from county to county, but they still follow the same general eviction process.
Delaware landlords are not free to evict any tenant at their own will because it is illegal to do so. The landlord must file for an eviction lawsuit and observe the Delaware eviction code.
Every eviction lawsuit is different and dependent on the lease/rental agreement signed by the tenant and the landlord. It is always best to exercise meticulous file-keeping to avoid errors that the tenant could exploit during Summary Possession.
This article details a summary for landlords to refer to when evicting a tenant. Confirm procedures with your justice court to make sure the entire process goes as smoothly as possible.
In the state of Delaware, a landlord can evict a tenant for multiple reasons. A lot of these factors rely on the lease terms stipulated in their written contract.
The first step to every eviction action is to give the tenant a notice that tells them why they’re getting evicted and what they can do to fix it (if possible). Most evictions require one to be issued.
Tenants are given either a written or verbal notice. The initial notice period takes about 60 days or less. The notice may serve as evidence when filing a complaint.
Below are valid reasons for a tenant to receive a notice for eviction:
1. Failure to Comply with Rent Deadlines
Rent is usually considered late a day past it is due. A grace period may be available if stated in the lease term/rental agreement.
According to Delaware law, failure to pay rent (non-payment of rent) violates the Residential Landlord-Tenant Code.
Before a Delaware eviction process can begin, a landlord must give the tenant an official written eviction notice called a 5-Day Notice to Pay. The notice must inform the tenant that they have 5 days to pay rent or terminate their tenancy.
If rent is paid within the notice period of 5 days, then the filing for eviction action does not continue. If they cannot pay, the landlord may reserve the right to continue filing for the eviction process.
2. Violation of the Lease/Rental Agreement
The lease/rental agreement has to be upheld by both tenant and landlord for the entire duration of their stay. The lease may vary from tenant to tenant in compliance with the Delaware eviction code as well as the Residential Landlord-Tenant Code.
If a tenant in Delaware violates any terms from the landlord-tenant code, the landlord must give the tenant an official written notice called a 7-Day Notice to Remedy. If the tenant resolves these issues on time, the eviction action does not continue.
Lease violations may include:
- Damage to the rental unit
- Smoking in non-smoking areas
- Keeping pets in pet-free properties, etc.
If the rent violations are not resolved, or the tenant remains in the rental unit, then the landlord may continue with the eviction.
If the tenant commits the same violation again, then the landlord can directly end the tenancy. A tenant may be given a 7-Day Unconditional Quit Notice to vacate the premises.
3. Conducting Illegal Activity
If a tenant has engaged in illegal behavior or caused irreparable harm to others within the rental unit, the landlord does not need to give the tenant a written notice. The landlord may immediately proceed with filing a complaint.
A Delaware landlord is not required to give written notice before starting the eviction action for tenants involved in illegal activities.
In the state of Delaware, the following are considered illegal activities:
- The tenant is convicted of a class A misdemeanor that may be a threat/cause irreparable harm to other tenants, the landlord, or the property. Example: theft of property.
- Tenant is convicted of a felony that may be a threat/cause irreparable harm to other tenants, the landlord, or the property—examples: burglary, arson, etc.
- Any threatening actions that may cause irreparable harm to other tenants, the landlord, or the property.
The landlord is advised to keep a close eye on their tenants to make sure illegal activity or behavior does not go unnoticed.
4. Non-Renewal of the Lease after the Rental Period Ends
In Delaware law, the landlord cannot evict a tenant or force them to vacate the rental unit without probable cause. As long as the tenant does not violate any rules, they can stay until their rent or rental period ends.
But there are cases wherein the landlord does not want to renew the tenant’s lease/rental agreement. If so, the landlord is required to issue a written eviction notice to move before their lease term ends.
Whether the tenant’s lease/rental agreement is weekly, monthly, or fixed-term, a Delaware landlord must provide all tenants a 60-days’ written eviction notice to vacate the premises.
The landlord must never evict a tenant due to discrimination. There should be legal causes for these evictions. The notice must specify the violation or reason for eviction.
The rental lease agreement alongside the Landlord-Tenant Code helps a lot when it comes to determining what a tenant has done wrong.
If the tenant isn’t within the property by the time the landlord is handing out the notice, it may be passed on to another adult tenant living in the rental unit.
Paying rent on time is the utmost priority. Landlords must ask the tenant to pay overdue rent. The notice must also include how much time a tenant has to pay.
Filing a Complaint
1. How to File a Complaint
The next step to an eviction process is filing a complaint. To begin, proceed to the Justice of the Peace court. The summary possession action can only begin after the issuance of the appropriate written notice.
Enough notice time must have been allowed before filing for eviction action.
The eviction steps are as follows:
- Proceed to the Justice of the Peace court
- File the Complaint
- Pay the filing fees
The landlord must check the documents correctly and avoid making errors. Making a mistake while filling up forms may hinder the action for summary possession. There is a possibility that the case will pass in favor of the tenant if errors are spotted.
The initial notice period takes about 5 to 60 days from the Notice to Vacate/Quit issuance. This depends on the reason for the eviction lawsuit and the rent or lease agreement.
Notice to Comply
Before filing for an eviction with the court, you need to issue the tenant a notice to comply. You can either download the free PDF or Word template, or create your Delaware eviction notice from here using a step-by-step wizard that guides you through the entire process to make sure you are submitting the legally correct notice.
Keep in mind, the step-by-step wizard will ask you to pay a small fee at the end - it's a small price to pay to ensure legal compliance and protection. The last thing you want is to go to court only to find out you did the first process incorrect.
Serving the Tenant
1. How to Serve a Tenant
After filing a complaint, the third step to an eviction process is serving the documents to the tenant.
An official from the court delivers the summons for the hearing and the complaint to the tenant. The constable is usually assigned this task.
Only the constable can give a copy of the documents to the other party. There are several methods available:
- Personal Service: The court official delivers the Summons and Complaint to the tenant in person.
- Substituted Service: If the tenant is unavailable, someone living with the tenant who is an adult may receive the documents.
- Posting and Mailing: The representative leaves a copy of the documents for the tenant. It is placed in a secure and visible position by the entrance of the tenant’s rental unit. When using this method, the server also mails the documents via first-class mail and certified mail. The court official will give the certificate of mailing to the court.
Neither the landlord nor their lawyer is allowed to serve the documents to the other party.
2. After Serving the Summons and Complaint
The tenant has at least a few days to a few weeks before the eviction hearing to prepare. The tenant does not need to file a written answer to the court.
The documents should be served to the tenant at least 5-30 days before the hearing is scheduled.
Either the landlord or the tenant can request a postponement of the hearing (called a continuance) for a maximum of 10 days.
It will take a few days or weeks to complete the hearing depending on the trial schedule and if a jury trial is requested.
Asking for Possession
1. Filing a Motion to Obtain Judgment and Get a Judgment for Possession
This step involves doing all that is necessary to win the case. The landlord needs to provide a strong argument backed up by solid evidence against the tenant. Should the tenant fail to show up to the hearing, the landlord wins with a default judgment.
A default judgment occurs when the judge immediately rules in favor of the landlord without hearing the tenant’s side of the story or if there were mistakes and an absence on the tenant’s part.
The landlord may not win the hearing. If so, they can still appeal within 5 days post-judgment for reconsideration.
2. Next Procedure if the Tenant Disagreed and Replied
In the state of Delaware, a reply from the tenant is not necessary for a court date to be scheduled. They only have to show up to the hearing.
The landlord must support the claim with evidence and show it during the hearing.
This could include, but is not limited to the following:
- Copy of the deed and lease
- Rent receipts and ledgers
- Bank statements
- Photo and video documentation of the violations, correspondence, etc.
If the judge rules in favor of the landlord, the tenant has ten days to be issued a Writ of Possession after the judgment had passed. The sheriff will then have the tenant forcibly removed from the rental unit.
The tenant must still pay their rents’ past dues in full amount within 10 days after the judge’s verdict. If past dues are paid within those 10 days, then the eviction process will not continue.
Eviction hearings are scheduled 5 to 30 days after the complaint was filed.
1. After the Landlord Wins the Case
Provided that the tenant does not appeal for reconsideration, a Writ of Possession is issued 10 days after the judgment has passed.
The Writ of Possession gives the tenant a maximum of 24 hours to vacate the rental unit.
2. Move Out Process
Once the judgment has passed, and the tenant receives the Writ of Possession 10 days later, the tenant must move out within 24 hours after receiving the Writ. This is due to summary possession actions by the landlord.
The Delaware constable executes the Writ. Once the Writ is given to the tenant and/or pasted on the entrance to the rental unit, the tenant has to move out.
Only the constable or an appropriate party of the court is allowed to remove the tenant by force. Even if the landlord wins the case, they are not allowed to engage in illegal eviction methods.
In Delaware law, contact information is necessary when signing a lease. If any belongings are left behind, landlords are advised to contact the tenant and give them a reasonable timeframe (such as 7 days) to claim them. After 7 days have passed, the tenant’s property may be sold or disposed of.
Any money earned by the landlord for the tenant’s belongings can be used to cover unpaid rent and any other outstanding costs.
Delaware tenants have 10 days once the judgment is passed and 24 hours once the tenant receives the Writ of Possession.
Delaware Eviction Timeline
Below is the average timeline for a complete eviction process. This timeline does not include special cases such as requests for an appeal or continuance.
On average, it would take anywhere between 1 month to 3 months for a complete eviction process in Delaware.
1. How to keep good records
If the tenant disagrees with the eviction request and they reply to the court, it’s important that you keep extremely good records of everything so you can provide proof to the judge and win your case. This part can make or break your entire eviction request in the event of a dispute.
You can stay organized by:
- Keeping a physical paper trail - This gets VERY hard to search through, takes up a lot of storage space, and could get lost, damaged, stolen, or burnt in a fire.
- Scanning documents - Scan every document into your computer. A great scanner is the Brother ADS-1700W for under $200 or the Fujitsu ScanSnap iX1500 for $400.
- Backups - Store and backup every file using Dropbox, Google Drive, OneDrive, or any other option that is easily searchable.
- PMS - Use a property management software to save everything from lease agreements, signed documents, violations, emails, notes, invoices, payments, reminders, maintenance requests, pictures, videos, and anything you can imagine. This is used best when you also scan every document into your software.
2. Evidence to show for not paying rent
If the tenant doesn’t pay rent, and they dispute that claim, it’s important that you show the judge the following:
- Your lease agreement - Showing the terms of the agreement, when rent is due, and any penalties for late payment.
- All payments - Showing all previous payments, how they were normally made (check, credit card, ACH, etc…), and what date they were normally paid on.
- Any payment returns - If their check bounced, their bank account had insufficient funds, or they did a chargeback dispute on their credit card, show this to the Judge. Also, you should show any fees your bank may have charged you, and any penalties you are owed according to your lease agreement.
- All messages - If you sent your tenant automated or manual payment reminders by text, email, a letter, or mail, it’s important to show this. While it’s usually not needed, it’s still good to show that they were aware of the situation and were given time to cure and make payment. This is why it’s always best to have everything in writing instead of any phone calls or face-to-face meetings.
3. Evidence to show for lease violations
If you are evicting the tenant for lease violations, for example, noise complaints, unauthorized pets, or property damages, it’s important to show proof from any of the following methods:
- Security Cameras - If you have a surveillance system that can show them committing the crime or lease violation, it’s safe to say you have a good chance to win the case.
- Video - If you didn’t catch them in the act, the next best thing is to record a video with your phone of any damages or the lease violation.
- Pictures - They say a picture is worth a thousand words. In this case, a picture could be worth thousands of dollars! Even if you take a video, it’s important to show the Judge any pictures too as it’s usually easier to see by email or printed.
- Lease Terms - Once again, show the court which term they violated in their lease agreement. Don’t worry if you don’t have every single term spelled out in your rental agreement. If the violation is bad enough, it might not be needed to have it written. As a good practice though, start adding all of the potential reasons to evict a tenant into your agreement.
Can I force a tenant to move out in Delaware?
No. A landlord could be sued for forceful eviction of a tenant. Notice is needed and the Writ of Possession must be approved by the court. To evict a tenant, the landlord must win the trial.
In the state of Delaware, a tenant may sue their landlord for the following amounts:
- Actual damages (Triple or Three Times by day)
- Tenant’s Court Costs
- Attorney’s fees
As another consequence of forceful eviction, the statute allows tenants to stay on the rental property and provides for legal fees.
The action for summary possession is only applicable when the reason for eviction is valid. Check the Delaware eviction code if stated in the rental agreement.
Which eviction methods are illegal in Delaware?
Self-help eviction is illegal. Examples of such acts include (but are not limited to):
- Cutting off the tenant’s services, such as electric, water, and/or heat supply
- Changing the locks to prevent the tenant from entering the property
- Vandalizing or destroying the tenant’s property
Other illegal eviction methods include:
- To evict a tenant as a form of reprisal/retaliation
- Removing the tenant’s belongings yourself
A landlord must give the tenant all rent services without discrimination.
What are the penalties for a self-help eviction in Delaware?
According to Delaware Civil Code, you could potentially be liable for Tenant’s Court Costs & Attorneys’ Fees. The statute also gives the tenant the right to stay.
A tenant can also be able to sue you for damages caused as well as violations. Tenants may ask for an injunction prohibiting any further violation during the court action.
How do I evict a family member in Delaware?
If one of your tenants is a family member and they did not sign a lease agreement, you can ask them to leave if you have a valid reason (such as their failure to pay rent).
You can evict a family member or someone living with you if they do not leave the rental unit voluntarily. Just follow the same eviction process as normal. It’s also advisable to seek legal advice from a lawyer specializing in landlord or tenant law regarding this issue.
What other Delaware laws should I be aware of?
Due to Covid 19, there might have been changes to the landlord or tenant law.
It is also wise for landlords to check out laws on Security Deposits. These deposits protect the landlord from the tenants who violate any terms in the lease/rental agreement or fail to pay the rent.