Find out when a tenant can legally break a lease in Delaware, when they can’t, and whether or not a landlord is required by Delaware law to make reasonable effort to rerent.
Before we address the legally acceptable reasons to get out a lease early without penalty, it’s important to know the notice requirements in Delaware to end a tenancy in general.
Lease Termination Notice Requirements in Delaware
In Delaware, a tenant is required to provide written notice for the following lease terms:
- Notice to terminate a fixed end date lease. 60 days notice prior to the expiration date (§ 5106 (c))
- Notice to terminate a month-to-month lease. 60 days (§ 5106 (d))
- Notice to terminate a week-to-week lease. No statute.
Conditions for Legally Breaking a Lease in Delaware
There are a handful of scenarios where a tenant can legally break a lease in Delaware without penalty. We’ll go through each of them below.
1. Early Termination Clause
Some modern lease agreements may provide specific terms that would allow a tenant to terminate a lease early in exchange for a penalty fee. Read over the lease and look for language that outlines agreed-upon terms for ending the lease before the end of the fixed period, such as the amount of the fee (i.e. equal to 2 month’s rent) and the amount of notice required (i.e. 30 days).
If a lease agreement contains an early termination clause, before executing it and paying the penalty fee, read further to learn about other conditions that, if met, would not require a penalty fee to be paid.
2. Active Military Duty
The Servicemembers Civil Relief Act (SCRA) helps protect active service members who are relocated due to deployment or permanent change of station. The protection begins on the date of entering duty and ends between 30-90 days after the date of discharge.
To break a lease in accordance with the relief act, a tenant must:
- Prove the lease was signed before entering active duty
- Prove they will remain on active duty for at least the next 90 days
- Deliver a written notice to the landlord (example, page 2), accompanied by a copy of the orders to deploy / PCS or a letter from their commanding officer stating their pending deployment.
With that said, the lease does not terminate immediately. Once the notice is delivered, the earliest the lease can terminate is 30 days after the beginning of the next rent period. So for example, if the notice was delivered on the 23rd of March, and the rent is due on the 1st of each month, the earliest the lease can terminate is May 1st (meaning, rent is still due for the month of April).
In Delaware, the term “servicemember” means a member of the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard.
3. Unit is Uninhabitable
Every state has specific health and safety codes that provide minimum standards for rental units, and Delaware is no different.
If those standards are not met, proper notice is given by the tenant and the repairs/fixes are still not made within the allowable time period, a tenant would be considered “constructively evicted”. As a result, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their own responsibilities under the Delaware landlord-tenant law.
According to Delaware state law § 5305 (a), landlord duties to provide habitable premises include the following:
- Compliance. Comply with the requirements of applicable building and housing codes materially affecting health and safety
- Repairs. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition
- Common Areas. Keep all common areas of the premises in a clean and safe condition
- Maintenance. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied
- Utilities. Maintain all electrical, plumbing and other facilities supplied by the landlord in good working order
4. Landlord Harassment or Privacy Violation
If the action is serious enough, harassment by a landlord or their violation of a tenant’s privacy may be enough justification for relieving a tenant of their obligations of the lease.
- Landlord entry. Delaware state law states that 48 hours of written or oral notice is required from your landlord (§ 5509 (b)). If your landlord repeatedly violates your rights to privacy or does removes windows or doors, turns off your utilities, or changes the locks, you would be considered “constructively evicted,” as described above.
- Changing the locks. In Delaware, a landlord cannot lockout their tenant(§ 5313).
5. Domestic Violence
Delaware provides tenants who are victims of domestic violence with special rental provisions for their protection. If you are confronting a domestic violence situation (this can also be stalking), and want to move, check with local law enforcement regarding special state laws that may apply in domestic violence situations. Some statutes the state of Delaware provides for victims of domestic violence include:
- Proof of Status: Landlord is entitled to verify the claim of Domestic Violence status (§ 5316).
- Protection from Termination: Landlord cannot terminate a tenancy, fail to renew a tenancy, increase rent or refuse to enter into a rental agreement with a victim of domestic violence and the tenant has sought assistance from any court, police, or service program (§ 5316 (a)).
- Early Termination Rights: If a tenant gives a landlord at least 30 days’ written notice, and the notice so requests, the landlord shall release the tenant from the rental agreement (§ 5314(6)).
Some exceptions apply which allow a landlord to terminate the lease or increase rent (§ 5316 (c)). A tenant who is otherwise delinquent in the payment of rent may not take advantage of the protection provided. (§ 5316 (d)).
6. Senior Citizen or Health Issue
If you, a dependent living with you, or your co-tenant, faces a serious physical or mental health issue, you may qualify for early lease termination without obligation to pay the entire balance of rent due.
Some states offer permitted, health-related lease-breaking arrangements that are age-restricted. Most states require a note from a locally licensed physician and at least 30 days’ notice. Since not all states allow this statute, be sure to check (the Delaware Landlord and Tenant Handbook) for further information.
Delaware has the following health-related early termination rights:
- Upon 30 days’ written notice, which 30-day period shall begin on the first day of the month following the day of actual notice, the tenancy may be terminated by the tenant, whenever the serious illness of the tenant or the death or serious illness of a member of the tenant’s immediate family, residing therein, requires a change in the location of the tenant’s residence on a permanent basis or by the tenant, when the tenant is accepted for admission to a senior citizens’ housing facility, including subsidized public or private housing, or a group or cooperative living facility or retirement home (§ 5314)
Examples of Insufficient Justification for Lease Breaking in Delaware
The below reasons are generally not enough justification (on their own) to release a tenant from the obligation of their lease term, and as a result, provide no legal protection against penalties for not honoring the lease.
- They bought a house
- They are relocating for a new job or school
- They are upgrading or downgrading
- They are moving in with a partner
- They are moving to be closer to family
Since state landlord-tenant laws vary, the following reasons may legally permit a tenant to terminate their tenancy early in other states but are not applicable in Delaware:
- Violation of the lease agreement. If a landlord violates the terms of the lease agreement, it may be enough justification to break the lease and relieve the tenant from their own obligations (i.e. illegally raising the rent during the fixed period).
- Illegal contract. In some scenarios, a lease agreement may be deemed illegal and as a result, is generally not enforceable.
- Mandatory disclosures. Many state and local laws require landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Disclosure laws typically impose heavy fines or legal ramifications to landlords if they are not followed. In rare cases, they contain penalty provisions and may allow you to break your lease.
Breaking a lease for any of the above reasons or in any conditions not previously outlined can have tangible consequences for tenants.
Delaware state law does not require landlords to take reasonable steps to rerent their unit when a tenant breaks their lease.
Tenant’s Right to Sublet in Delaware
If your lease does not prohibit subletting, then you are in the clear to do so. However, your lease might contain a clause requiring you to obtain your landlord’s approval prior to subletting. To get landlord approval you will want to send them a letter through certified mail, with a return receipt requested, outlining the terms of the sublet lease agreement. Certified mail is the only proof of delivery that most courts will accept in case you need to prove that you notified your landlord.
The letter should include the following information:
- Sublet term
- Name of proposed subtenant or assignee
- The permanent home address of proposed subtenant or assignee
- Your reason for subletting or leaving permanently
- Your new address during the sublease if applicable
- The written consent of any co‑tenant
- A copy of the proposed sublease
If your landlord rejects your request, know that they can only refuse the proposed subtenant based on legitimate factors. The law says your landlord cannot unreasonably refuse your sublet.