A Delaware residential lease agreement may be oral or in writing though oral agreements may not be for more than one year or they will be considered to monthly. Similarly, if you have a lease with no term, it is considered a month-to-month rental agreement.
All landlords should have written agreements so that all parties are aware of their duties and obligations, rules of conduct and how certain procedures regarding the rental arrangement are to be followed.
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Landlords may charge a rental application fee that is no more than 10% of the rent, or $50, whichever is greater. If the fee is used toward payment for a credit check and the applicant is rejected, the tenant is entitled to a copy of the document that the landlord relied upon.
Federal as well as state laws prohibit you from refusing to rent to someone based on color, race, creed, religion, family status, national origin, age, sexual orientation or disability. You may reject applicants based on credit history, criminal record, and record of prior evictions or insufficient income. You can also set aside a group of units exclusively for seniors.
Landlords may not retaliate against tenants who joined tenant unions, filed a complaint against you or otherwise exercised a civil right or remedy adverse to you within 90-days of the action. Retaliatory conduct includes sending a notice of termination, increasing the rent, decreasing services or engaging in any other conduct to force the tenants to vacate. You may still move to evict the tenant if other circumstances exist that are not connected with the actions taken by the tenant and violate the lease.
A Delaware landlord has certain basic obligations:
- Give a copy of the rental agreement to the tenant
- Provide receipts for all rent paid by cash and retain records for 3 years
- Provide a copy of the summary of Delaware’s landlord/tenant code at beginning of tenancy
- Comply with laws concerning the maintenance, construction and appearance of the unit
- Provide dwelling that does not endanger the health or safety of the tenant
- Keep common areas clean and sanitary
- Make necessary repairs to ensure the unit is safe and healthy
- Provide trash receptacles and the means of disposal though you may delegate this to the tenant per agreement
- Provide smoke and carbon monoxide detectors in good and operating condition
- Provide essential utility services unless it is the responsibility of the tenant per agreement and if local codes permit it
Tenants also have responsibilities when renting a residential dwelling:
- Keep dwelling clean and properly dispose of trash
- Keep plumbing fixtures clean
- Use all facilities and appliances in the proper manner
- Do not damage the unit
- Notify the landlord of necessary repairs
- Notify the landlord of extended absences per lease term
- Obey the law
- Provide forwarding address upon vacancy
Your rental agreement should contain a number of essential terms along with certain optional ones:
- Name of property owner and property manager; address where rent is to be paid; emergency or maintenance contact information; address and name of person to whom legal documents and notices are to be served
- Names of all the tenants and any other occupants—have all adult tenants sign the lease so that they are jointly and severally liable for the lease terms, including the rent
- Address of the premises
- Beginning and end dates
- Amount of rent and date it is due—grace period not to exceed 5 days after which a late fee of no more than 5% of the monthly rent may be charged
- Insufficient check fees—give notice to pay or collect amount due plus any court costs, service and collection costs and processing fees
- Provide rules that apply to all tenants fairly, are clearly worded and that promote the convenience, safety and welfare of the tenants; preserve your property and are not intended to avoid your own duties and obligations—any rule that is a material change in the rental lease agreement in a month-to-month lease must be in writing and not apply until 30-days after notice is given
- Landlord’s obligations as noted above—may provide house or conduct rules that apply to all tenants and are for the convenience, safety and welfare of all tenants, provides for the fair distribution of services and facilities to all and preserves the landlord’s property from damage
- Tenant’s obligations as noted above—you may require the tenant to perform specific minor repairs or maintenance if it does not diminish the obligations of the landlord to provide a residence fit for habitability
- Party responsible for certain utilities
- Major appliances being provided
- No commercial, business or illegal use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit of one month’s rent except for service dogs
- Subletting clause—whether you allow it and that you have to consent to whomever is the sublessee
- Your right of entry to make repairs, inspect and show to future tenants or purchasers—48 hours’ notice and entry at reasonable hours; indicate that you may enter immediately if it is an emergency
- Notify landlord if absence from unit is to be 7 days or longer
- 60-day notice prior to expiration of lease required for termination of lease without cause; applies also to monthly leases
- 5 -day notice to quit required for nonpayment of rent—7 days’ notice to quit for other lease violations including:
- substantial damage to the premises caused by tenant or persons under tenant’s control that has not been repaired
- unauthorized pets or occupants
- engaged in criminal activity that endangers the safety of other tenants including the manufacture of illegal controlled substances
- sublease without consent
- constant nuisance to other tenants
- refusing entry to landlord after being given reasonable notice
- No notice required if same violation occurs within one year
Other Notices in Delaware
- Notice for increasing rent or other material change of lease agreement—60-days in advance of the effective date of the increase in a monthly lease (may not be for a discriminatory or retaliatory purpose), and tenant has 15-days after receipt of notice to terminate the tenancy or accept the changes; otherwise, not until the fixed term expires
- Provide disclosure of the presence of lead-based paint on the property for all rental property built before 1978—provide the tenant with an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
- If tenancy is one year or more, deposit may be no more than one month’s rent; if monthly, you may charge more but must return excess to tenant after one year of occupancy; no limit to deposit if unit is furnished
- Funds kept in a security deposit account in a federally insured institution
- if paid in cash, give tenant a receipt
- no interest required to be paid
- disclose location of account within 20-days of written request by tenant
- no requirement of a check-in list or statement of the condition of the property but highly recommended
- state that that the funds are to be used for damages that exceed normal wear and tear and, if you wish, for any outstanding rent due upon surrender of possession and for unpaid utility charges or failure to return keys
- funds will be returned no later than 20-days of tenant vacating unit and sent to a forwarding address that is supplied by the tenant or, within the 20-day period, submit a written, itemized statement with specific reasons for withholding deposit with receipts and estimate of the costs of repair; advise that tenant will have 10-days to send a written objection to any deductions
- recommend that you set a time and date for a mutual inspection a short time after the tenant vacates with check-out list on hand
For month-to-month leases, you may charge whatever you wish as a security deposit. A fixed term lease of at least one year, however, requires no more than one month. If the tenant remains for one year, you must return the excess of the deposit received to the tenant.
The funds are to be kept in a security deposit account in a federally insured institution though interest is not required to be paid. The location of the funds must be disclosed upon the tenant’s written request.
You have 20-days after the tenant vacates to return the deposit or submit an itemized, detailed statement of the damages and costs of repair. The tenants are to be advised they have 10-days to object or accept the deductions. Though not mandatory, you should have a check-list for you and the tenant to use to inspect the unit prior to occupancy and to re-use shortly after it is vacated so as to avoid disagreements over what constitutes damages or wear and tear.
Termination of the Lease
Any lease may be terminated by giving 60-days’ notice before the end of the rental period, including a monthly lease. If you want to have the tenant remain and transform the fixed term into a monthly lease while increasing the rent or changing other terms, the 60-day notice is also required but the tenant has 45 days before the end of the tenancy to accept or reject the new arrangement.
You must give 5-days’ notice to quit for nonpayment of rent after the 5-day grace period has expired. You can still file for eviction using Delaware’s summary eviction procedure should the tenant pay the rent in full before or after you file for eviction so long as you expressly stated in writing that you reserve the right to proceed with the eviction.
For all other lease violations, the notice is 7-days but the tenant is allowed to remedy the violation. You can rely on the notice to quit for one year should the tenant repeat the violation so that you need not repeat the notice and may proceed directly to file for eviction. If there were damages, you can repair it and charge the tenant but if the violation also violates state law or a local code ordinance, you can file for eviction.
Early Termination Exception
There are a number of exceptions that allows a tenant to terminate a fixed term lease earlier than the expiration date by giving 30-days’ notice:
- new employment requires relocation at least 30 miles away
- serious illness or that of an immediate family member requires permanent relocation
- acceptance into a senior living facility
- servicemember who is deployed at least 35 miles away or ordered to live in government-supplied quarters
- victim of domestic violence, stalking or sexual violence and has sought protection from the court, police or domestic violence agency
If there is substantial noncompliance with your obligations to provide habitable residence, the tenant can move to terminate the lease within the first month of occupancy after giving you 15-days’ written notice of the noncompliance with a chance to remedy. If you do not, the tenant must seek a court order seeking termination and damages.
Withhold and Deduct
For damages that require you to repair under the lease terms, the tenant must give you 10-days’ notice and allow you 30-days from the date of the notice to perform the repairs. If you fail to do so, the tenant may deduct one-half the rent or $200, whichever is less. The condition in question must affect the sanitary or safe condition of the unit or be in violation of a building, health or safety code or ordinance.
Contact an experienced and knowledgeable Delaware landlord/tenant lawyer regarding your Delaware residential lease agreement to ensure it complies with all state and local laws or if you have questions about your rights and obligations as a responsible landlord.
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