Landlords in Delaware can’t just change the locks, toss your belongings out on the front yard, or shut down essential utilities. A landlord must follow the eviction process in order to have a tenant evicted for any reason. Here's an overview of what this means for tenants in Delaware.
Written by Upsolve Team.
Updated December 13, 2021
Facing an eviction is tough. You may fear losing your home and believe you have no rights. Fortunately, Delaware’s residential landlord-tenant code gives tenants rights and protections when they face eviction. This article goes through the state of Delaware’s eviction process and how you can defend yourself. If you’re dealing with the threat of eviction, owe rent, or have a lease that’s expiring, then this article may be helpful.
What Is Eviction?
A landlord can use an eviction (also known as a summary possession in Delaware) to make a renter leave their property. Before the landlord can evict you, they need to provide an eviction notice that explains why they want you out. They also may need to give you a certain amount of time to resolve the issue If you don’t resolve the issue by the time the notice expires, the landlord has to file an eviction lawsuit and get a court order to make you leave.
If your landlord makes you leave without a court order, they have engaged in an illegal eviction or illegal lockout.
Delaware has four types of evictions, this article will explain each one.
Who Can Be Evicted in Delaware?
You can only face eviction if you have a landlord-tenant relationship. A tenant is someone who rents a property through an agreement with the owner of the rental property. This agreement is often spelled out in a lease. Anyone who lives with the tenant can be evicted, even if they aren’t part of the rental agreement.
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Why Can Someone Be Evicted in Delaware?
You can be evicted for three main reasons. First, if you owe rent. You could owe rent because you didn’t pay the whole amount of rent, you’re late in paying the rent, or you haven’t paid rent in a while. You can also face eviction for lease violations outside of not paying the rent, like having a pet that isn’t permitted. Finally, your landlord can evict you if your lease expires and you don’t leave.
Eviction cases generally work the same regardless of why you’re being evicted. The process can differ in terms of the notice period that your landlord needs to provide before you seek an eviction.
Late, Short, or Behind on Rent?
In Delaware, the landlord can start the eviction process once your rent is late, even if it’s just a day late. The landlord needs to give you notice of five days to either pay the rent or vacate.
Lease Expiration or Termination
Delaware law allows for eviction once the lease expires or is terminated. In both instances, the landlord essentially says that you don’t have a right to live in the rental unit, even if you’ve paid the rent in full.
When your lease expires, regardless of the term of the lease, the landlord needs to give you a 60-day notice to leave the property. The landlord can meet this requirement by providing this notice well in advance of the lease expiration, so it’s likely the notice will have expired when your lease expires.
Lease termination is different from expiration. When your lease is terminated, it ends early. Your landlord may terminate your lease and pursue eviction if you violate the lease. The amount of notice they must give you depends on the lease term you violated. If you break the law or commit “irreparable harm,” the landlord can file an eviction immediately, without prior notice.
Irreparable harm is something that money can’t fix. One example is threatening someone in your apartment complex to the degree that they don’t feel safe living there. Another example is doing a dangerous activity that made the landlord believe they can’t keep their property safe under any circumstances.
For any other violation of a lease, the landlord needs to provide seven days’ notice for you to cure the problem or leave. Curing the problem simply means you address and fix it.
The Delaware Eviction Process
Landlords need to follow a specific process to evict tenants legally. This section outlines the steps of an eviction lawsuit in Delaware.
What does a landlord have to do to begin an eviction?
To file an eviction in court, landlords must first give tenants a written notice that explains how long the tenant has before they need to move out and if they can cure the issue.
If you break the law or commit irreparable harm, the landlord can file an eviction lawsuit immediately. They aren’t required to give you any notice.
If you violate the lease through any other means, the landlord needs to provide you with seven days to cure the problem or leave.
If the lease is expiring or has expired, the landlord needs to give you 60 days’ notice to leave.
For the nonpayment of rent, the landlord must give you five days to pay the rent or leave.
What happens once the eviction action is filed with the court?
Once the notice time period ends, the landlord needs to go to court to get a detainer warrant. This allows the landlord to serve a summons that will have the court date on it. The landlord will have the constable serve the summons by either:
Delivering the summons to you in person.
Leaving the summons with an adult at your rental unit.
Mailing you the summons using certified mail.
Sending you a summons through first-class mail and giving the court a certificate that proves they mailed it.
Putting the summons in an obvious place on your unit and mailing you a copy of it.
You must be served with the summons at least five days before the hearing and no more than 30 days before. You have the option to file an answer before the hearing, but you can also just give your answer at the hearing. If you file an answer, you’ll fill out paperwork with the court that includes your response to the landlord’s claims and any defenses you want to raise. You can also bring a counterclaim, where you sue your landlord for damages.
Make sure to attend the eviction hearing. If you don’t attend, the landlord will get a default judgment. This means that the landlord wins just because you didn’t go to court.
Telling Your Side of the Story: Affirmative Defenses and Counterclaims
When you give your answer, you’ll have a chance to respond to the landlord’s claims by providing affirmative defenses and counterclaims. An affirmative defense is a reason that you shouldn’t be evicted. At the hearing, you should provide evidence to support your defense(s). Some defenses include:
The rental unit has safety violations.
The landlord didn’t give you proper notice.
The landlord’s reasons for eviction aren’t true.
The landlord is discriminating against you.
The landlord is evicting you because you complained about issues in the apartment.
You can also bring a counterclaim, where you raise a claim involving damages. If you win the counterclaim, it doesn’t stop the eviction. But it can result in you winning money that the landlord owes or decrease the amount that you owe the landlord. Counterclaims typically involve issues with rent.
What Happens After an Eviction Trial?
If the landlord wins at the hearing, the court will issue a judgment 10 days later. This is known as a writ of assistance or writ of possession. After this, law enforcement will give the tenant 24 hours to leave the property. If the tenant doesn’t leave, then law enforcement can force them to vacate.
If you want to appeal, you must do so within five days of the hearing. The court can help you figure out which forms to file with the respective appellate court. In the appeal, you must explain why you think the ruling was incorrect and why the court’s error proves you shouldn’t face eviction.
Practical Tips for Tenants Facing Eviction in Delaware
If you’re facing an eviction lawsuit in Iowa, it helps to know the state laws. But there are practical steps you can take to potentially stop the eviction or to defend yourself if you can’t stop it.
Gather evidence that supports your defense. This can include records that show you paid the rent or photos and videos that document the state of the property. You should also get a municipal building inspector to create a formal report on the property.
If you can’t attend the court date, you should contact the court and see if they can change the date. If not, then you should ask how to prevent a default judgment.
If you pay rent to prevent eviction, be sure to keep a record of the payment.
Keep in contact with your landlord throughout your tenancy and confront any problems right away. This can prevent an eviction. You want to avoid an eviction under any circumstance, even if your lease is ending. Having an eviction on your record can make it more difficult to get approved to rent in the future.
If you’re facing an eviction, reach out to your landlord, their attorney, or the property manager to see if you can negotiate an agreement to avoid the eviction. The landlord might be willing to end the lawsuit if you move out right away. If you reach an agreement, get it in writing.
If you have legal questions or feel overwhelmed by handling the legal process, consider reaching out to a tenant’s rights lawyer.