The Delaware eviction process for residential properties is also known as “Summary Possession,” since it provides for a shorter time for a landlord to follow the required due process procedures to expel a tenant. A landlord who fails to adhere to these procedures may have their eviction action dismissed or, if a landlord attempts to evict a tenant outside the judicial process, may be liable to the tenant for actual damages.
Delaware law also obligates the landlord to provide the tenant with a free copy of the Delaware Residential Landlord Tenant Code or an eviction action pursued by the landlord might be successfully challenged.
For most evictions, the Delaware eviction process requires that a written notice be served on the tenant if the reason for the eviction is for nonpayment of rent; for noncompliance or violation of some provision in the rental agreement; or if the tenant has held over beyond the expiration of the lease and there is no automatic provision for extending it.
Service of the notice may be done by personal service or by certified or registered mail. If it is by personal service and the tenant is absent, the notice may be left with another adult tenant residing in the unit or by posting it on the unit door and mailing a copy by registered or certified mail to the tenant.
For nonpayment of rent, the Delaware eviction notice is for 5 days, not including weekends. It may be personally served on the tenant with notice beginning the day it was served or mailed, if necessary. The notice should identify the tenant, the address of the unit, the amount of rent due, and that the lease will expire if full payment is not tendered.
The Delaware eviction notice is 7 days for a tenant residing in a manufactured home.
For cases where the lease has expired or where the tenant has a month-to-month lease, the landlord must give a 60-day notice with the notice period beginning the day after it is served.
In situations where the tenant has breached a term of the lease, such as having unauthorized persons or pets living on the premises, the tenant must be given 7 days to cure or remedy the violation. For tenants in mobile homes, the notice period is 10 days.
No notice is required if the tenant has committed a class B misdemeanor or felony offense that involves violence to property or person. This may also extend to drug crimes committed on the premises.
Summons and Complaint for Summary Possession
If the tenant has failed to comply or vacate by the end of the notice period, the next step in the Delaware eviction process is for the landlord to file and serve a Summons and Complaint for Summary Possession in the Justice Court nearest the location of the rental property.
The time and place for the eviction hearing is noted on the summons. The complaint must state the description of the property and the relationship of the landlord with the tenant, the rental rule allegedly breached, the purpose of the rule, the date the tenant was advised of the violation, a summary of facts in support of any violation and the means by which the rule violated was made known to the tenant.
A tenant has various defenses available to him or her depending on the reason for the eviction and if the tenant is alleging that the landlord breached his or her own obligations:
- Failure of the landlord to provide a copy of the Delaware Residential Landlord Tenant Code. A tenant can claim ignorance of the law in this case, a defense not ordinarily available in any other criminal or civil matter.
- Failure of landlord to remedy a condition that deprives the tenant of his or her right to quiet enjoyment of the unit or which substantially affects the tenant’s safety or health provided the tenant has given the landlord 15-day written notice to remedy the condition.
- Failure of landlord to provide essential services after 48-hours written notice to the landlord. The tenant may terminate the agreement, deduct 2/3 of the daily rent until the services are provided, or obtain equivalent housing while the services are not provided and deduct the rent owed.
- Retaliatory eviction if the eviction process was begun within 90 days of the tenant having complained to the landlord or local or state agency about the unit’s condition, pursued a legal right or had joined a tenant’s union.
- The rule allegedly violated conflicts with the rules set forth in the Delaware Residential Landlord Tenant Code.
- No copy of the lease rule violated was provided to the tenant.
- Discriminatory purpose if the eviction is based on the tenant’s religion, race, family status, having children, sexual orientation, creed, age, occupation, national origin or disability.
- The tenant paid the rent after the notice period expired or after the landlord filed the summons and complaint and the landlord accepted the rent but the rental agreement did not include a reservations of rights allowing the landlord the right to continue the possession action.
The eviction trial may be held before a judge or jury. If a jury is requested, the landlord must do so at the time the complaint is filed or the tenant must request one within 10 days after receipt of the complaint.
Writ of Possession
If judgment is for the landlord, a Writ of Possession must be requested by the landlord. The tenant usually has 10 days to vacate the property. If he or she has not left, the writ is given to the sheriff to serve on the tenant, who has 24-hours to leave.
Should the tenant leave any belongings behind, the landlord may remove and store the personal property at the tenant’s expense for 7 days. If the tenant does not claim the property and does not pay the costs, the landlord may dispose of the belongings.
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