Eviction In Delaware

If you own and rent properties in the state of Delaware, you are responsible for complying with Delaware eviction laws. In this article, we break down each step of the legal eviction process in Delaware. 

Delaware’s eviction laws can be found at Del. Laws 25 § 5701-5719. 

Delaware Eviction Process 

1. Landlord serves a zero- to seven-day eviction notice. 

2. Landlord files an eviction lawsuit with the court. 

3. Court serves tenant the summons. 

4. Tenant may file an answer. 

5. Landlord and tenant attend court hearing and receive judgment. 

6. Tenant gets 24 hours to move out. 

7. Sheriff or constable arrives to forcibly remove the tenant. 

Tenants in Delaware can be evicted for: 

• Holding over after the lease term expires 
• Failing to pay rent or wrongfully deducting money from the rent 

• Breaching a lawful obligation 
• Holding over for more than five days after the property has been sold and the title transferred 
• Refusing to move out for repairs when the unit becomes uninhabitable after fire or casualty 
• Being convicted of a class A misdemeanor or any felony during the term of tenancy which caused or threatened to cause irreparable harm to any person or property 

(Del. Laws § 5702) 

1. Landlord Serves a Zero- to Seven-Day Eviction Notice 

If any of the above lease violations occur, the landlord must first serve an eviction notice and state that the tenant has the appropriate number of days to remedy or cure the violation. There are three possible eviction notices a landlord may send in Delaware: 

• Rent Demand Notice: 5 days to quit. If rent is unpaid when due, the landlord may deliver this notice stating the amount of unpaid rent required to remedy the breach and the date on which the lease will terminate if it is not paid (not less than five days after receipt of the notice) (Del. Laws 25 § 5502). 

• Lease Violation Notice: 7 days to cure or quit. If a tenant violates a lease term, the landlord may deliver this notice stating the breach and what is required to remedy it, as well as the date on which the lease will terminate if the tenant does not cure the breach (not less than seven days after receipt of the notice). A breach that can be remedied by the landlord (e.g., cleaning, repairs, etc.) should be completed and billed to the tenant (Del. Laws 25 § 5513). 

• Notice for Repeat Violation: Immediate. If the tenant commits a similar breach within one year of a first violation, this is grounds to immediately send a quit notice and file for eviction (Del. Laws 25 § 5513). 

• Unconditional Notice to Quit: Immediate. This notice gives no opportunity to “cure” the violation and applies if the tenant does any of the following on the leased premises as per Del. Laws 25 § 5513: 
  • Violates an obligation imposed by any city, county, or state code, ordinance, or statute. 
  • Causes or threatens to cause irreparable harm to any person or property 
  • Is convicted of a class A misdemeanor or felony 

For all evictions, the landlord may recover actual damages and reasonable attorney’s fees. 

2. Landlord Files an Eviction Lawsuit with the Court 

If the tenant has not cured the breach by the end of the notice period (or if the violation is uncurable and the notice period expires), the landlord can then file an eviction lawsuit (a complaint and supporting affidavit) with the Justice of the Peace Court which hears civil cases in the county where the property is located (Del. Laws 25 § 5701).  

The Complaint form (JP Civ. Form No. 1, downloadable here) includes: 

• The county, court number, court address, and civil action number 
• The landlord and tenants’ names and information 
• The names and contact information of both parties’ attorneys or agents 
• The type of service requested 
• The type of action (check “Summary Possession (LLT)”) 
• The address and a description of the rental unit 
• A concise statement of the facts on which the claim is based, or the grounds for eviction 
• A copy of the eviction notice 
• The relief the landlord is seeking (including possession and judgment for rent and/or court costs)  

(Del. Laws 25 § 5707)  

If the tenant has violated a lease term or law, the complaint should also include the following: 

• The lease provision or rule that the tenant violated 
• Evidence of the lease violation (e.g., pictures, witness statements, etc.) 
• The date the tenant was told they violated the lease 
• The manner in which they were told 
• Proof that the proper eviction notice was delivered (e.g., a Certified Mail receipt) 
• Any evidence showing a recurring violation 
• A statement of the purpose of the lease provision 
• A copy of the lease or rule that was originally given to the tenant 

(Del. Laws 25 § 5708). 

To file the claim, the landlord will also need to pay a filing fee of $45. This fee includes service of process to the tenant. 

3. Court Serves Tenant the Summons 

After the landlord files a claim, the court will issue a court summons, to be served with a copy of the complaint to the tenant. The summons will state the time and place of the eviction hearing and remind the tenant that if they fail to attend the hearing, they may forfeit their right to raise any defense or claims against the landlord (Del. Laws 25 § 5704).  

The summons must be served between five and 30 days before the hearing. It should be served by a constable in the traditional manner of personal service required for civil actions. If this is not possible, the summons and complaint can be left with a person of suitable age who lives at the unit or it can be posted on a conspicuous part of the unit (e.g., the front door) and mailed to the tenant by certified mail. Proof of service for the summons and complaint must be filed with the court no later than five days after service is made (Del. Laws 25 § 5705, 5706). 

4. Tenant May File an Answer 

The tenant may submit an answer to the court on the day of the hearing, either orally or in writing (a written answer is not required). The answer can include any legal defense or counterclaim to the landlord’s complaint as long as it does not exceed the jurisdiction of the court (Del. Laws 25 § 5709). 

5. Landlord and Tenant Attend Court Hearing and Receive Judgment 

The eviction hearing is not required to be scheduled within any specific time frame after the complaint is filed, so the hearing date largely depends on the current caseload of the court and its scheduling capacities. This could be anywhere from a few days to a few weeks. Either the landlord or the tenant may also delay the hearing by filing a continuance, which cannot exceed ten days (Del. Laws 25 § 5710). 

On the day of the eviction hearing, the landlord should bring copies of the lease agreement, the eviction notice with proof of service, the complaint, and any evidence of the lease violation. Both the landlord and tenant will present their cases and any evidence to the judge, who will afterwards issue a judgment. If either the landlord or tenant requested a jury trial, the justice will appoint six jurors to hear the case, who will determine the judgment instead (Del. Laws 25 § 5713).  

Typically, a default judgment is assigned to the landlord in the case that the tenant does not attend the hearing. However, if this occurs, the tenant may file a motion to reopen the case within ten days (Del. Laws 25 § 5712(b)).  

If the judgment is in the landlord’s favor, the landlord can ask the court to issue a writ of possession. However, the landlord must wait at least ten days after the judgment, but longer if the tenant filed an appeal (the court will wait to see whether or not the tenant is successful in the appeal before issuing the writ). The landlord is required to submit a Request for Writ of Possession and pay a fee of $35 for the writ’s issuance. 

After the writ is issued, the court will direct it to the constable or sheriff of the county (Del. Laws 25 § 5715). Typically, a tenant cannot remedy the lease violation any time after the judgment has been issued. However, if the violation was nonpayment arising out of a good faith dispute and the tenant pays the full amount of past-due rent within ten days of the judgment date, Delaware eviction law allows them to stay in the unit and the eviction will be stopped (Del. Laws 25 § 5716). 

6. Tenant Gets 24 Hours to Move Out 

If the tenant has not moved out after ten days when the writ of restitution is issued or by the end of the appeal period, the constable or sheriff will post the writ at the rental unit and give final notice to move out within 24 hours (Del. Laws 25 § 5715(a)). The landlord will have to pay a fee of $40 for service of the writ of summary possession. 

7. Sheriff Arrives to Forcibly Remove the Tenant 

If the tenant still has not moved out by the end of the 24 hours, the sheriff will return to execute the writ and forcibly remove the tenant. This must be done during daylight hours (Del. Laws 25 § 5715(a)). 

If the tenant leaves personal property on the premises, the landlord should immediately remove the property and store it for at least seven days at the tenant’s expense. If the tenant fails to reclaim the property and reimburse the landlord for the storage cost, the property is considered abandoned, and the landlord can dispose of it without further notice (Del. Laws 25 § 5715(e)). 

Evicting a Squatter in Delaware 

A squatter is a person who moves into a vacant or abandoned property without getting permission from the owner or paying rent. Squatters can usually be charged as criminal trespassers and be evicted like any other tenant. However, some squatters can receive the right to possession by meeting certain state-determined criteria. In Delaware, squatters must have lived in the property for 20 consecutive years to invoke Delaware squatters rights and claim right of possession (Del. Laws 10 § 7901). Their possession must also be: 

• Hostile/Adverse—The squatter must not have a valid lease with the owner 
• Actual—The squatter must be actively residing on the property 
• Open and Notorious—The squatter is openly and obviously living there. 
• Exclusive—The squatter does not share possession of the property with anyone else.  
• Continuous—The squatter must hold continuous and uninterrupted possession. 

While relatively rare, if a squatter meets all these criteria, they have “color of title”: the right of legal ownership without having a written deed to the property. They can file an action for adverse possession in Delaware to legally obtain the title to the property. However, in most cases, a squatter will not meet the criteria and can be removed. If you think a squatter is living in your vacant property in Delaware, you should: 

1. Call local law enforcement. 

2. Determine whether the person is a trespasser or a squatter. 

3. If the person is a trespasser, they can be removed immediately by a police officer. 

4. If the person is a squatter, you must contact the sheriff’s office. 

5. Send the squatter an eviction notice as per Delaware eviction law. 

6. If the squatter does not vacate the premises by the end of the notice period, file for eviction and follow the typical eviction process. 

7. Only the sheriff can physically remove a squatter from your property. You cannot do so, and neither can a police officer. 

Delaware Eviction Cost Estimates 

This chart shows estimates of the approximate cost of an eviction in Delaware, according to civil procedure in the state and iPropertyManagement. A highly accurate estimate of an eviction is impossible to provide, as cases and circumstances vary so widely. Remember to factor in other losses due to an eviction as well, such as lost rent, time, and stress. 

Delaware Eviction Time Estimates 

The chart below shows an estimate of the duration of each part of the eviction process. Keep in mind that the length of eviction cases varies widely depending on the complexity of the eviction, the court’s current caseload, and whether or not the tenant contests or appeals the lawsuit.  

Court Forms 

• Complaint (JP Civ. Form No. 1) 
• Affidavit of Good Cause 
• Answer to Petition (downloadable here) 
• Request for Writ of Possession (downloadable here) 

Additional Resources 

• Delaware Justice of the Peace Court Filing Fees – This site lists the costs to file various cases in the Delaware Justice of the Peace court. 
• How to File and Defend a Summary Possession Action in the Justic of the Peace Court – The Delaware courts judicial branch handbook for landlords pursuing an eviction action. 
• Delaware Court Landlord-Tenant Forms – A list of downloadable court forms from the Delaware Courts Judicial Branch. 
• How to File and Defend a Summary Possession Action – This helpful court guide explains each step in the eviction process for landlords. 

Conclusion 

The eviction process in any state can be long and complex, so hiring an eviction attorney is advised in most cases. It’s also important to note that municipalities and local governments often have stricter laws and requirements for landlords, so be sure to check local statutes as well as state ones. However, by reviewing the legal procedures and Delaware laws on eviction, you can feel more confident pursuing an eviction in this state. 

Innago does not provide legal advice. The content and materials provided in this article are for general informational purposes only and may not be the most up-to-date information.