Delaware Eviction Process

How to Evict a Tenant in Delaware (6 Steps)

Step 1: Serve the Eviction Notice

Del. Code Title 25, Chapter 57 lays out the landlord-tenant code and the terms of eviction notices for tenants. The type of eviction notice will depend on why the landlord needs to evict the tenant from the property.

Once the eviction notice has been served, the landlord must give the tenant time to respond. In many cases, including both lease violations and rent non-payment, the tenant will be able to remedy the circumstances and remain in the property.

Step 2: File the Eviction Notice with the Court

Once the tenant has been given the appropriate amount of time to respond to the notice, the landlord can file an eviction notice with the court. Under 25 Del. Code § 5701, the notice should be filed with the justice of the peace court in the county where the property is located.

If the tenant doesn’t comply or pay by the specified date, the landlord can initiate Summary Process proceedings by submitting the necessary documents and paying the $45 filing fee.

The Complaint (Form CF01) should include all relevant information about the eviction, including the address of the property, the tenant’s name, and the reason for the eviction. In the case of eviction for non-compliance, the landlord should also include the process they used to contact the tenant and notify them about the violation, including the date and time of notification. Furthermore, the complaint should include any evidence of the breach.

Step 3: Issue a Summons

The court will serve the tenant with a court summons and a copy of the complaint. The Summons (Form CF01FS) will provide information about the upcoming eviction hearing and note that the tenant must appear at the hearing, or the court will likely issue a summary judgment against them.

Under 25 Del. Code §§ 5705 and 5706, the notice must be served between five and 30 days before the hearing. The party issuing the summons must prove that the summons was made no more than five days after service.

Step 4: Appear in Court

Under 25 Del. Code § 5709, the tenant has the right to issue an answer regarding the complaint. On the day of the hearing, the tenant can present their legal defense, including proof that they have paid rent or made a good faith effort to take care of the lease violation in question. The landlord should also bring all relevant evidence, including:

• A copy of the lease agreement.
• Evidence of the violation.
• Copies of the eviction notice and information about how the notice was served.

Either the landlord or tenant can request a jury trial. Both sides will have the opportunity to present all evidence, and the court will issue a ruling in favor of one side.

If the tenant does not appear at the trial, the court will typically issue a summary judgment in favor of the landlord. However, under 25 Del. Code § 5712, the tenant can file a motion to reopen the case within 10 days of that judgment.

Step 5: File for a Writ of Possession

If the court has issued a decision in the landlord’s favor, the landlord can request a Writ of Possession. However, the landlord must wait at least 10 days after the judgment. If the tenant files an appeal, it may take longer before the landlord can apply since the court will want to see if the tenant is successful.

Once the Writ of Possession is issued and directed to the sheriff or constable of the county where the property is located, they will serve the final notice of eviction. This notice gives the tenant 24 hours to vacate the property.

Step 6: Have the Tenant Removed

If the tenant does not leave the property within 24 hours of the final notice, the sheriff will arrive to forcibly evict them from the property. The landlord should not take any steps to remove the tenant on their own.

Eviction Reasons

The process may look different depending on the reason for eviction. For example, the landlord may need to provide more time and notice in the event of a lease violation than in the case of non-payment of rent. Evicting a tenant without cause, on the other hand, may mean offering significantly more time for the tenant to make other arrangements.

Notice for Termination With Cause

Eviction occurs when the tenant’s actions give the landlord a reason to remove them from the property, usually because the tenant has violated the lease agreement in some way. In most cases, the landlord will need to allow the tenant time to remedy any lease violation.

1. Five-Day Notice to Pay Rent

Overview:

• Under 25 Del. Code § 5502, the notice is used when tenants are behind on rent.
• The landlord gives the tenant five days to catch up on late rent payments before they can move forward with eviction proceedings (weekends and holidays are excluded from that period).
• As per 25 Del. Code § 5501, there is a five-day grace period before landlords can charge a fee for late rent, which cannot exceed 5% of the total rent amount.

2. Seven-Day Notice to Quit

Overview:

• Under 25 Del. Code § 5513, the notice of non-compliance is used to notify tenants that they have violated the lease in some way, including having pets in a pet-free rental or having more tenants in the unit than the lease allows.
• The landlord allows the tenant seven days to remedy lease violations.
• If the breach can be remedied by the landlord, including replacing a damaged item or taking care of cleaning, they can solve the problem and bill the tenant for the repairs.

3. Notice of Non-Compliance: Illegal Activities

Overview:

• If the tenant’s non-compliance includes breaching a law, ordinance, or statute, a notice of non-compliance due to illegal activities is used.
• This allows the landlord to immediately terminate the rental agreement, including bringing an action for summary possession.

4. Notice of Rent Non-Payment or Late Rent: Manufactured Homes

Overview:

• According to 25 Del. Code § 7016, this notice is used when the resident fails to pay rent on time.
• The tenant has seven days to take care of late rent payments (the period includes weekends and holidays unless otherwise specified).

5. Notice of Non-Compliance: Manufactured Homes

Overview:

• In a manufactured home community, a notice of non-compliance should be submitted to tenants who are in any way at fault with the rent agreement.
• If the tenant can remedy the breach, they have 12 days under the notice to take care of the problem.

6. Repeat Notice of Non-Compliance: Manufactured Homes

Overview:

• A notice for repeat offenses should be used when the tenant commits essentially the same breach more than once within the same six-month period.
• If their allegation about this behavior is true, the landlord may have the right to immediately terminate the lease agreement, with no option for the tenant to remedy the breach.
• This notice may allow the landlord to immediately apply for summary possession of the property.

Notice for Termination Without Cause

When the tenant has not done anything to cause the eviction, landlords need to wait until the lease period has ended to remove them from the property.

1. Notice to End a Month-to-Month Tenancy

Overview:

• Under 25 Del. Code § 5106, the notice is used when the landlord decides not to continue to rent to a tenant on a month-to-month lease or after a lease has expired.
• This notice provides the tenant with 60 days’ notice to vacate the property before the landlord moves forward with eviction proceedings.
• The period includes weekends and holidays.

2. Notice to End a Fixed Term Tenancy

Overview:

• Landlords must wait until the end of a fixed term lease to expect a tenant to move if there’s no legal cause for eviction.
  Written notice to move isn’t mandatory unless specified in the lease terms.
• If a tenant remains past the lease term, the landlord should cease accepting rent and commence the eviction process.

Eviction Timeline

Tenant Rights in Delaware

Throughout the eviction process, landlords must consider the tenant’s rights. Delaware lays out specific tenant protections, including how landlords must handle evictions and what they need to do with tenant property afterward.

Self-Help Evictions

A self-help eviction occurs when a landlord tries to remove a tenant from the property without going through the eviction proceedings. Landlords are prohibited from actions like turning off the power to a unit or changing the locks to try to force the tenant to move out. Instead, they should go through the full eviction process.

Abandoned Property

When a tenant leaves the premises without taking all of their property, the possessions left behind are considered abandoned. Under 25 Del. Code § 5715, the landlord must keep the property for seven days at the tenant’s expense and allow the tenant to reclaim it if desired. If the tenant fails to collect their property, the landlord can then dispose of it without providing any further notice to the tenant.

Resources

• Delaware Landlord/Tenant Support: Information from the Delaware courts about summary possession and how to seek or fight it.
• U.S. Department of Housing and Urban Development: Tenant rights, laws, and regulations, including how tenants can protect themselves.
• Rental Help for Delaware Residents: Assistance finding a rental and protecting renter rights.