Delaware Tenant Information – Renters Rights

 

Landlord-tenant relationships in Delaware are governed by two separate codes, the Residential Landlord-Tenant Code and the Mobile Home Lots and Leases Act. The Residential Landlord-Tenant Code, found beginning in Chapter 51 of Title 25 of the Delaware Code, generally applies to all private, non-commercial landlord-tenant relationships where the rental unit is not a mobile home in a mobile home park. The Mobile Home Lots and Leases Act, found at Chapter 70 of Title 25 of the Delaware Code, applies to the rental of a mobile home in a mobile home park.

All subsidized housing rentals in Delaware are governed by the Delaware Residential Landlord-Tenant Code. However, there are Federal regulations which also apply to these tenancies which may give the tenant greater or lesser rights in certain instances.

If you have a problem with your landlord you should contact CLASI as soon as possible to see if you qualify for our assistance.

 

Tenants Defending an Eviction Forms

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Tenant Defence Forms

 

 

Can the Landlord evict me without going to court?

NO!

The law in Delaware requires a landlord to obtain an order from the Justices of the Peace Court (“JP Court”) before evicting a tenant from the rental unit. The landlord must go to JP Court and file a lawsuit for “summary possession”. It is only after a hearing and a judgment from the Court that a landlord can evict a tenant from the rental unit.

If your landlord tries to evict you without an order from the Court, you should call the police immediately. The police should advise the landlord that he or she is trespassing and that they must go have an order from the Court to make you move.

 

 

Does my landlord have to give me a notice before taking action in court?

Before filing a complaint with the court to evict a tenant, the landlord must send the tenant a written notice terminating the landlord-tenant relationship. The notice must be sent in a certain way and the content of the notice depends upon the reason for the landlord’s action.

The landlord must send the termination notice in writing. The landlord cannot tell you on the telephone or when the landlord comes to collect the rent. Delaware Law requires that the notice must be in writing.

The landlord must send the notice in one of three different ways. The notice can be sent by certified or registered mail, by certificate of mailing or it can be hand-delivered. The notice cannot be slipped under your door or left under the windshield wiper of your car.

If you receive a notice of certified or registered mail from your landlord, you must pick it up! If you ignore the notice of certified or registered mail, and the letter is returned to the landlord, the landlord can still use that letter in Court to evict you. The Court deems that the notice is delivered effectively as long as the landlord uses the correct address. It does not matter that you did not pick up the letter.

If you receive a termination notice DO NOT THROW IT AWAY. You should keep it for your records and show it to an attorney if you have one. Quite often there are errors in the contents of the letter which can prevent the landlord from evicting you from your rental unit.

 

Termination Notice content

The content of the notice depends upon the reason for the landlord’s action. The Delaware Residential Landlord-Tenant Code requires the landlord to use different types of notices for different reasons for eviction

 

Non Payment of Rent

If the landlord is terminating the tenancy because the tenant did not pay rent, the landlord must send the tenant notice that the rent is due and that the tenant must pay the rent due within a specified time after the date on which the notice is sent. In most cases, the landlord must give the tenant at least 5 business days to pay the rent. The notice must also advise the tenant that if the rent is not paid within the time specified in the notice, the tenancy will be terminated.

If the tenant pays the rent within the period specified in the notice, the landlord cannot evict the tenant from the rental unit. If the rent is not paid by the date mentioned in the notice, the landlord can file an eviction complaint with the Justices of the Peace Court (“JP Court”) and obtain an eviction order (a “writ of possession”).

 

 

Lease Violations

If the landlord wants to terminate the tenancy because the tenant violated the lease or a rule the landlord must send the tenant written notice describing the violation and giving the tenant seven calendar days to correct the problem. The notice must also state that failure to correct the violation may lead the landlord to terminate the tenancy and file a complaint for the tenant’s eviction. Please be aware that if the violation is not corrected, or if the same violation is repeated within one year following the notice, the landlord may file a complaint for eviction with the JP Court.

To show you how this works suppose the landlord sends a seven day notice to the tenant to repair a hole in the wall made by one of the tenant’s children. The tenant has seven days from the date the letter was sent to fix the hole in the wall. If the hole is fixed within seven days the tenant may stay. If not, the landlord can file an eviction action at the JP Court.

 

Termination without cause

If the landlord is not terminating the tenancy because the tenant did something wrong, but is terminating the tenancy because the landlord simply no longer wants to rent the property to the tenant, the landlord must send a different written notice. The landlord must send the tenant the notice of termination at least 60 days before the end of the lease term. If the tenant does not move at the end of the sixty day period the landlord may file an eviction complaint with the JP Court.

The “term” is the length of time for which the landlord and tenant agreed for the rental of the property. If the landlord and tenant agreed to a one year tenancy, the term is one year.

The 60 day period for the notice does not begin to run until the first day of the month after the landlord sent the notice. It sounds confusing, doesn’t it? Here is an example:
If the tenant receives a 60 day notice on the third day of September, the 60 day period does not begin to run until the first day of October (the “following month”). Consequently, the tenant would not have to move from the rental unit until December 1st. (60 days from October 1st).

However, if the tenant receives the notice on the first day of the month, the 60 days begins immediately.

If the tenant does not have a written lease or the lease term is from month to month, the landlord must give the tenant 60 days notice. As above, the 60 days does not begin to run until the first day of the month after the landlord sent the notice.

These are the most common reasons that a landlord terminates a tenancy but there are other reasons and corresponding notice requirements as well. In addition, the requirements mentioned above vary if a tenant lives in a mobile home park or in subsidized housing. You should contact CLASI or a private attorney as soon as possible for assistance if you receive a termination notice.

 

 

What happens when the Landlord files an Eviction for possession in Court

In order to remove a tenant from rented property, a landlord must file a written “complaint” with the Justices of the Peace Court (JP Court). A “complaint” tells the Court why the landlord wants a tenant to move. The complaint can ask for return of the rental unit, damages and for unpaid rent. The complaint can also ask that the tenant be assessed court costs.

After the landlord files a complaint, the Court schedules a trial to determine whether the statements in the complaint are true. The Court also will decide whether, if the statements are true, the landlord is entitled to recover possession of the rental unit. A trial concerning a landlord’s complaint for eviction (court forms use the term “possession” rather than “eviction”) usually occurs fifteen days after the complaint is filed. This time period may be longer if the Court is very busy.

A Court constable will deliver a copy of the complaint to the tenant, along with written notice of the date and time of trial. The constable will deliver the notice by hand to an adult at the rented property, by attaching the documents to the rented property and/or by sending it by certified mail.

At the trial the landlord will tell the Court why an eviction is required. The tenant can tell the Court why the tenant believes that the tenant is entitled to stay in the rental unit. Witnesses also may testify on behalf of the landlord or the tenant. After the testimony, the Court makes a decision. Usually, the Court will make a decision right away, but sometimes, if there is a lot of testimony, the Court will send out a decision in the mail.

If the Court denies, or rules against, the landlord’s claim for possession the tenant is entitled to remain in the rented property. If, on the other hand, the Court awards possession to the landlord, the landlord may, after waiting five business days, request a “writ of possession”.

A “writ of possession” is an order directing the Court constable to evict the tenant from the rental unit. The constable will deliver a written notice to the rental property to warn the tenant that the landlord has obtained a writ of possession and the tenant has 24 hours to move. The tenant must move within 24 hours after receiving the writ from the constable.

If the landlord or tenant is unhappy with the Court’s decision, an appeal may be filed by either party. The appeal must be filed within five business days after the date of the decision. Ordinarily, the Court charges a fee for the appeal and requires a “bond”. If a party is low-income and cannot afford to pay a filing fee or a bond, the party can fill out a form with the Court which asks the Court to waive the fee and bond.

An appeal is heard by a panel of three Justices of the Peace. An appeal of an eviction case is conducted as if the original trial never occurred. In other words, it is a completely new trial. You may testify and call all of your witnesses again. Do not assume that the judges know any of the testimony from the first trial. The decision of the three judges after the hearing is final and cannot be appealed by either party.

If you feel you need legal assistance from CLASI please call us as soon as you receive notice of the court date. CLASI will need as much time as possible to investigate your case prior to trial. In addition, CLASI attorneys are quite busy and may not be available for trial upon short notice.

 

HOW DO I TERMINATE MY LEASE WHEN I WANT TO MOVE?

Tenants often have problems when they try to terminate their leases. You should be aware that you cannot normally terminate your lease unless you give the landlord 60 days written notice prior to the end of the lease term. For example, if you have a lease for one year beginning on October 1st, you generally cannot terminate the tenancy until September 30th. In order to terminate your tenancy by September 30th, you must give the landlord notice before August 1st (60 days in advance) that you are terminating your tenancy on September 30th.

In a tenancy for a specific term, you generally cannot terminate the lease prior to the end of the term. If you terminate the lease early or abandon the rental unit before the end of the term, your landlord can recover damages for the early termination.

The procedure for terminating your lease is slightly different if you have a month to month tenancy. A month to month tenancy can occur in several ways. Normally, the parties agree to the term of the tenancy being month to month. However, if no term is specified in your lease, you have a month to month tenancy.

Your tenancy also may change to a month to month tenancy from a term tenancy. If you have a lease for a term, such as one year, and the lease does not provide that it is renewed for an additional year after the initial year has passed, the lease does not automatically renew for the same term. Instead your tenancy converts to a month to month tenancy once the first lease term expires.

A month to month term technically ends each month on the day before your next rent payment is due. However, in order to terminate your lease you still must give your landlord 60 days’ notice before you intend to leave. For example, if your rent is due on the first of each month and you want to move out before June 1st, you must give your landlord written notice before April 1st that you are terminating the tenancy on June 1st.

There are some exceptions to the 60 day requirement. Among other exceptions, a tenant may be required to give a lesser notice of termination when the landlord fails to correct certain serious conditions, or when the tenant has been accepted to senior citizen or subsidized housing, or when a tenant needs to move because of domestic violence.

If you do not properly terminate your tenancy, the landlord can recover damages from you. These damages are called “reasonable reletting expenses”. The Court can award damages to the landlord for lost rents for the time that you left early and/or lost rents for the time that it takes to get the rental unit repaired and relet.

However, the Courts normally limit “reasonable reletting expenses” to two or three month’s rent. The landlord must make efforts to find another tenant to live in the unit. The Court will not permit a landlord to leave the rental unit vacant until the end of the lease term. The Court usually assumes that it would take the average landlord two to three months to find another tenant. Consequently, if you terminate your lease 10 months early, the Court will not award the landlord a judgment for 10 month’s rent but you will be responsible for two to three month’s rent.

The landlord cannot charge rent to two different tenants at the same time for the same rental unit. Regardless of whether you moved improperly, if your landlord rerents the dwelling, your liability for rent ends. Accordingly, if you have to terminate your lease early, it is in your best interests to find another qualified tenant to take your place.

 

 

Extra Help Links:

Summary of the Delaware Residential Landlord-Tenant Code
The Delaware Housing Coalition provides an online version of the Summary required to be distributed by all Delaware residential landlords. The summary explains each section of the Code in layperson’s terms.

Tenemos Derechos-Guia Para Inquilinos y Proprietarios
The Delaware Housing Coalition provides an excellent spanish translation of the Summary of the Delaware Residential Landlord-Tenant Code.

Delaware Mobile Home Lots & Leases Act
For general information about manufactured housing in Delaware, visit the Delaware Housing Coalition website.

Delaware Housing Coalition
The website of the Delaware Housing Coalition. A Delaware based housing advocacy group dedicated to safe and affordable housing for all.

Delaware Community Reinvestment Action Council, Inc.
A Delaware advocacy group dedicated to ensuring equal access to credit and capital for the under served populations and communities throughout Delaware.

Delaware Housing Search
A guide to finding housing in Delaware.

NCALL Research, Inc.
A multi-faceted nonprofit housing corporation based in Dover, Delaware that offers a variety of housing development technical assistance services to local nonprofit sponsors, along with educational direct services to low and moderate income households in need of housing improvement.

 

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Nationalevictions.com is for people who are renting or seeking to rent housing. Our site is for Eviction Information Purposes only, Not Intended to replace your Attorney or any Legal Advice. The reader should always remember your legal responsibilities. After all, you may unknowingly jeopardize your rights by not fulfilling your legal rights as a Tenant or Landlord.

Many of the Chapters and Articles are interrelated. This not intended to be an all-inclusive overview, or the best advice in every situation. Please Consult a Lawyer for your Rights and Protection as to the laws of your State. This information is not meant to be a substitute for the advice of an Attorney.