In Delaware, a landlord who wants a tenant out files a case for summary possession in the Justice of the Peace Court [1][2]. Before filing, the landlord has to give written notice: at least seven days to pay overdue rent [3] or to fix most other lease breaches [4], or 60 days to end a month-to-month tenancy [5]. Delaware tenants also have strong ways to stop a rent case by paying [3][6].
At a glance
| Reason | Notice | Law |
|---|---|---|
| Rent unpaid | Written demand to pay within at least 7 days, sent after the late-fee grace period | 25 Del. C. § 5502(a) |
| Breach of a material lease rule | At least 7 days to remedy | 25 Del. C. § 5513(a) |
| Substantially similar breach within 1 year of a prior notice | Landlord may rely on the earlier notice | 25 Del. C. § 5513(a)(1) |
| Breach causing or threatening irreparable harm to a person or property | Immediate termination on notice | 25 Del. C. § 5513(b) |
| Ending a month-to-month tenancy | At least 60 days, starting the 1st of the next month | 25 Del. C. § 5106(d) |
| Not renewing a fixed-term lease | At least 60 days before it expires | 25 Del. C. § 5106(c) |
Step 1: The notice
Unpaid rent. Delaware gives tenants a grace period: a late fee can’t be charged within five days of the due date [8]. After that point, the landlord can demand the past-due rent in writing and say that unless it’s paid within the time stated in the notice, at least seven days after the notice is given or sent, the landlord may go to court [3]. If the tenant stays in default, the landlord can file for summary possession [3].
Other lease breaches. If a tenant breaks a material lease rule, the landlord has to give written notice and allow at least seven days to correct it [4]. The notice has to name the rule and say that if the tenant makes a substantially similar breach within one year, the landlord can rely on that notice to file [4]. For a breach that causes or threatens irreparable harm to a person or property, the landlord can end the lease right away on notice [4].
No-fault endings. Either side can end a month-to-month tenancy with at least 60 days’ written notice, counted from the first day of the month after the notice [5]. A landlord who doesn’t want to renew a lease with a set term also has to give at least 60 days’ written notice before it expires [5].
How notices are delivered
A notice can be handed to the tenant, left at the unit with an adult who lives there, or sent by registered, certified or first-class mail with a certificate of mailing [9]. It can also be posted on the unit when that’s combined with a return receipt or certificate of mailing [9].
Pay and the case stops
Delaware law gives tenants three chances to keep their home by paying:
- Before filing. If the tenant, or anyone on the tenant’s behalf, pays all rent due before the landlord files, the landlord can’t then file a summary possession case based on that nonpayment [3]. The landlord can’t refuse rent paid by or for the tenant [3].
- After filing, before judgment. If all rent due under the lease is paid after the case is filed, the landlord can’t maintain the nonpayment case [3]. Before judgment, the landlord can insist on the payment methods the lease allows [3].
- After judgment. A tenant can redeem the unit by paying everything the court finds due, including rent and court-awarded costs and fees, any time before the eviction is actually carried out [6]. The court then stays the writ and vacates the possession judgment [6]. After a judgment, the landlord can require a certified check or money order, but a check from a charity or government agency counts the same as the tenant’s payment [6]. This right doesn’t apply to a tenant who has had two judgments of possession for nonpayment in the past 18 months [6].
Step 2: The court case
Summary possession cases are heard in the Justice of the Peace Court [1], at the court nearest the rental property, in its county [2]. The court’s fee page lists a $45 landlord-tenant filing fee [11].
Court papers are served personally if possible, otherwise by leaving them with an adult at the unit, and if that fails, by posting them on the unit and mailing copies [12]. A landlord can’t get a judgment unless the court is satisfied the tenant actually received notice of the case [13].
- No written answer is required. The tenant can answer at the hearing, out loud or in writing, and raise any defense or counterclaim within the court’s limits [14].
- Jury trial. The tenant can demand a six-person jury within 10 days after being served [15].
- Postponement. Either side can ask to adjourn the trial to get witnesses or evidence, but for no more than 10 days unless everyone agrees [16].
- Missed the hearing? A party can move to vacate a default judgment within 10 days after it’s entered [13].
A free lawyer for many tenants
Delaware gives tenants whose household income over the past 12 months is not more than 200% of the federal poverty guidelines a right to legal representation in eviction cases [10]. The right can start as soon as the tenant gets a 7-day rent notice, a breach notice or a court filing [10]. There are limits: it doesn’t apply when the landlord owns three or fewer rental units and has no lawyer or authorized agent, and it depends on available representation [10]. The program is coordinated through Delaware Volunteer Legal Services, with Community Legal Aid Society and Legal Services Corporation of Delaware named as legal aid agencies [10].
Step 3: Judgment, appeal and removal
After a non-jury trial, the losing side can ask in writing within five days after judgment for a new trial before a panel of three justices of the peace, other than the one who heard the case [7]. The panel decides within 15 days of the request [7]. The appeal only pauses the eviction if the appealing party files a bond or other assurance to cover costs and the rent that comes due while it’s pending [7]. The court’s fee page lists $60 for this appeal [11].
A writ of possession can’t issue until the time to appeal or to move to vacate has run out [17]. The constable or sheriff has to give at least 24 hours’ notice and can carry it out only between sunrise and sunset [17].
What landlords can’t do
- No lockouts. If a landlord removes or keeps a tenant out without a valid court order, the tenant can get back in or end the lease, and recover three times the damages or three times the daily rent for each day excluded, whichever is greater, plus court costs [18].
- No retaliation. A landlord can’t file for possession, raise the rent or cut services because a tenant made a good-faith code complaint, organized a tenants’ group or used a legal right [19]. If the landlord acts within 90 days of that, retaliation is presumed [19]. A tenant who proves it can recover three months’ rent or three times the damages, whichever is greater [19].
Deposits, fees and late charges
- Security deposit: no more than one month’s rent for a lease of a year or more, or for a month-to-month tenancy after its first year; the limits don’t apply to furnished units [20]. Within 20 days after the lease ends, the landlord has to return the deposit or send an itemized list of damages with any balance [20]. Missing that deadline entitles the tenant to double the amount wrongly withheld [20].
- Application fee: no more than the greater of 10% of the monthly rent or $50 [20].
- Late fees: no more than 5% of the monthly rent, and not within five days of the due date [8].
Where to get help
- Delaware Volunteer Legal Services, Community Legal Aid Society and Legal Services Corporation of Delaware: the state’s legal aid agencies for tenants [10].
- A landlord-tenant attorney: worth a call to review your notice and defenses if you don’t qualify for free help.
Sources
- 10 Del. C. § 9301: Justice of the Peace Court civil jurisdiction
- Delaware Courts: How To Start a Civil Action in the Justice of the Peace Court
- 25 Del. C. § 5502: Landlord remedies for failure to pay rent
- 25 Del. C. § 5513: Landlord remedies relating to breach of rules and covenants
- 25 Del. C. § 5106: Term and termination of rental agreement
- 25 Del. C. § 5716A: Stay of proceedings by the court; right of redemption
- 25 Del. C. § 5717: Stay of proceedings on appeal
- 25 Del. C. § 5501: Tenant obligations; rent (late charges)
- 25 Del. C. § 5113: Service of notices or pleadings and process
- 25 Del. C. chapter 56: Right to Legal Representation in Evictions (§§ 5601-5602)
- Delaware Courts: Justice of the Peace Court Civil Fees
- 25 Del. C. § 5706: Manner of service
- 25 Del. C. § 5712: Default judgment
- 25 Del. C. § 5709: Answer
- 25 Del. C. § 5713: Jury trials
- 25 Del. C. § 5710: Trial
- 25 Del. C. § 5715: Execution of judgment; writ of possession
- 25 Del. C. § 5313: Unlawful ouster or exclusion of tenant
- 25 Del. C. § 5516: Retaliatory acts prohibited
- 25 Del. C. § 5514: Security deposit
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How much notice does a Delaware landlord have to give for unpaid rent?
At least seven days. Once the rent is late past the point when a late fee could be charged, the landlord can send a written demand saying that unless the rent is paid within a stated time, at least seven days after the notice, the landlord may go to court. If the tenant still doesn't pay, the landlord can file for summary possession.
Can a Delaware tenant stop an eviction by paying the rent?
Usually, yes. If all rent due is paid before the landlord files, the landlord can't then file a case for that nonpayment. If all rent due under the lease is paid after the case is filed, the landlord can't keep the nonpayment case going. And even after a judgment, a tenant can redeem the unit by paying everything the court finds due, plus court costs, any time before the eviction is carried out, unless the tenant has had two nonpayment judgments in the past 18 months.
Do Delaware tenants get a free lawyer in eviction cases?
Many do. Delaware law gives tenants with household income at or below 200% of the federal poverty guidelines a right to legal representation in eviction cases, subject to available funding and some exceptions, such as when the landlord owns three or fewer units and has no lawyer.
How long does a tenant have to appeal an eviction in Delaware?
Five days. A party who loses a non-jury summary possession trial can ask in writing, within five days after judgment, for a new trial before a panel of three justices of the peace. The appeal only stops the eviction if the party also files a bond or other assurance the court requires.