Evicting a tenant in Delaware can take around 1 to 3 months, depending on the type of eviction and whether the tenant contests it. If tenants request a continuance or jury trial, the process can take longer.
Grounds for an Eviction in Delaware
In Delaware, a landlord cannot legally evict a tenant without cause. Legal grounds to evict include:
- Not paying rent on time
- Staying after the lease ends
- Violating lease terms
- Committing illegal activity
Depending on the grounds for eviction, the landlord needs to give proper notice and provide the tenant a chance to cure the violation.
| Grounds | Notice Period | Curable? |
| Nonpayment of Rent | 5 Days | Yes |
| End of Lease or No Lease | 60 Days | No |
| Lease Violations | 7 Days | Yes |
| Illegal Activity or Repeat Violations | 7 Days | No |
Nonpayment of Rent
In Delaware, a landlord can evict a tenant for not paying rent on time. To do so, the landlord must first serve the tenant a 5 days’ notice to quit, which gives the tenant a chance to pay the balance due or move out.
Unless the lease states otherwise, rent is due at the beginning of each month and is considered late in Delaware the day immediately after its due date. Delaware landlords are not required to give tenants a rent payment grace period. However, if the lease or rental agreement allows for one, then the landlord must honor it.
If the tenant does not pay the balance due or move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
If rent is due on June 1st, it will be considered late starting on June 2nd, unless the lease specifically states there is a grace period.
End of Lease or No Lease
In Delaware, a landlord can evict a tenant who does not have a lease (“tenant at will”) or has a lease that has terminated and continues to remain on the premises (“holdover tenant”). To do so, the landlord must first terminate the tenancy by giving the tenant a 60-day notice to move out.
If the tenant does not move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Lease Violations
In Delaware, a landlord can evict a tenant for violating the terms of their lease or not upholding their legal responsibilities under Delaware landlord-tenant law. To do so, the landlord must first serve the tenant a 7-days’ notice to comply or vacate, which gives the tenant a chance to fix the issue or move out.
Examples of lease violations include:
- Failing to maintain the premises in a clean and sanitary manner
- Using fixtures or appliances in an unreasonable or unsafe manner
- Causing minor property damage (i.e. small holes in the sheetrock or missing blinds)
- Removing or tampering with smoke detectors or carbon monoxide detectors
- Disturbing the peace and enjoyment of others
If the tenant does not fix the issue or move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Illegal Activity or Repeat Violations
In Delaware, a landlord can evict a tenant who engages in illegal activity on the premises. To do so, the landlord must first serve a 7-days’ notice to vacate the premises. The tenant does not have the option to fix the issue and must move out of the rental unit.
Illegal activities include:
- Causing irreparable harm to others
- Causing substantial damage to the premises or another person’s property
- Engaging in acts that violate local, state, or federal law
When causing irreparable harm to others, a landlord can serve an immediate notice to vacate rather than a 7-days’ notice to vacate.
Furthermore, if a tenant repeats a lease violation within a 12 month period, the landlord can serve a 7-days’ notice vacate. The tenant does not have the option to fix the issue and must move out within the 7-day period.
If the tenant does not move out by the end of the notice period, the landlord can move forward and file an eviction lawsuit.
Illegal Evictions in Delaware
In Delaware, there are a few different types of evictions that are illegal. If found liable, the landlord could be required to pay the tenant an amount equal to three times the per diem rent for the amount of time the tenant was out of the rental unit or triple the damages, whichever is greater.
“Self-Help” Evictions
A landlord is not allowed to attempt to forcibly remove a tenant by:
- Changing the locks
- Shutting off utilities
- Removing tenant belongings
A tenant can only be legally removed with a court order obtained through the formal eviction process.
Retaliatory Evictions
It is illegal for a landlord to evict a tenant in response to exercising a legally protected right. These rights include:
- Complaining about habitability issues to the landlord or any authority tasked to enforce the law
- Filing a complaint to a government authority
- Joining a tenant’s union or organization
- Pursuing a legal right to remedy habitability issues
Steps of the eviction process in Delaware:
- Landlord serves tenant written notice of violations
- Landlord files complaint with court due to unresolved issues
- Court serves tenant with summons and complaint
- Court holds hearing and issues judgment
- Writ of possession is issued
- Constable returns possession of property to landlord
Step 1: Landlord Serves Notice To Tenant
A landlord can begin the eviction process in Delaware by serving the tenant with written notice. Delaware landlords may deliver an eviction notice using any of these methods:
- Hand delivery to the tenant
- Hand delivery to a person of suitable age and discretion on the premises who can accept the notice on behalf of the tenant
- Delivery by registered or certified mail, or by first class mail with a certificate of mailing
- Posting the notice on the rental unit, PLUS delivery by a method which produces a return receipt or certificate of mailing
Mailed notice extends a notice period by three (3) calendar days, to account for variable delivery times.
Landlords should always keep the original signed notice and declaration of service as proof of proper service if the case proceeds to court.
5-Day Notice To Quit
In Delaware, if a tenant is late on paying rent (full or partial), the landlord can serve them a 5-Day Notice To Quit. This eviction notice gives the tenant 5 days, to pay the balance due or vacate the premises.
60-Day Notice To Vacate
For a tenant with no lease or a month-to-month lease in Delaware, the landlord can serve them a 60-Day Notice To Vacate to terminate the tenancy. This lease termination notice allows the tenant 60 days to move out.
For tenants that don’t pay rent monthly, the amount of notice does not change.
7-Day Notice To Comply or Vacate
In Delaware, if a tenant commits a minor violation of the terms of their lease or legal responsibilities, the landlord can serve them a 7-Day Notice To Comply or Vacate. This eviction notice gives the tenant 7 calendar days to fix the issue or move out.
If the tenant repeats the same or a similar lease violation within 12 months, the landlord can serve the tenant a 7-day notice to vacate to terminate the tenancy.
7-Day Notice To Vacate
In Delaware, if a tenant repeats a lease violation within 12 months or violates a city, county or state law, the landlord can serve them a 7-Day Notice To Vacate. This eviction notices gives the tenant 7 days to move out without the chance to fix the issue.
Immediate Notice To Vacate
In Delaware, if a tenant threatens to cause or commits irreparable harm against other persons or the property, the landlord can serve them an Immediate Notice To Vacate.
On the same day the notice is served, the landlord can go to the courthouse and file an action for summary possession to begin eviction proceedings, but this is not required by law.
Step 2: Landlord Files Lawsuit with Court
If the notice period ends and the tenant remains on the property, the next step in the eviction process allows the landlord to file a complaint with the Justice of the Peace Court. In the state of Delaware, this costs $45 in filing fees.
The complaint must include:
- The names of the landlord and tenant
- The address of the rental unit
- A statement of facts to determine the grounds for eviction (i.e., failure to pay rent, violation of lease)
A copy of the written notice that was sent to the tenant must be attached to the complaint and there should be a statement of what the landlord seeks as a remedy (i.e., full payment of rent).
If the eviction is due to a tenant’s violation of lease, the landlord must include the following:
- The provision of the lease agreement that was violated
- The date the tenant was told that they were in violation of the lease
- The way the tenant was told of the violation (i.e., mailed notice)
- Facts showing a recurring violation
- Facts showing the tenant was in violation and the landlord gave proper notice
- A statement of the purpose served by the rule
- A copy of the rule that was initially provided to the tenant
The eviction will be scheduled for trial but it may take several weeks before the trial is held due to the number of cases filed in court.
After the eviction lawsuit is filed, it can take a few days to several weeks for the court to issue the summons.
Step 3: Court Serves Tenant with Summons and Complaint
The summons and complaint must be served on the tenant by a constable within 5-30 days prior to the hearing for all eviction actions. If the constable is unable to deliver the complaint and summons in person, the constable may deliver the documents through one of the following methods:
- Giving a copy to the tenant in person
- Leaving a copy at the tenant’s residence with a competent adult
- Mailing a copy via registered or certified mail
- Mailing a copy via first class mail and providing the court with a certificate of mailing
- Posting a copy in a conspicuous place at the rental unit and mailing a copy to the tenant
Giving a copy to the tenant in person may only be done by a professional process server.
The summons and complaint must be served at within 5-30, days prior to the eviction hearing.
Step 4: Court Holds Hearing and Issues Judgment
Delaware state law does not require the eviction hearing to be held within a certain amount of time after the complaint is filed with the court. The hearing may be held a few days to a few weeks later.
If the tenant fails to appear for the hearing, it will not be continued, and the judge will issue a default judgment in favor of the landlord. However, within 10 days of a default judgment in favor of the landlord, tenants may file a motion to have a hearing and reopen the eviction case.
Either the landlord or tenant may request a 10-day continuance or a jury trial, which will add more time to the process.
Tenants are not required to file a written answer with the court in order to attend the hearing or object to the eviction action. If the judge rules in favor of the landlord, a writ of possession will be issued, and the eviction process will proceed.
Tenants may pay the past-due rent amount in full within 10 days of the date judgment is issued in favor of the landlord and remain in the rental unit. The eviction process will be stopped at that point if all past-due rent is paid in full.
Step 5: Writ of Possession Is Issued
Once the constable receives the writ of possession, they must give tenants 24 hours’ notice to vacate the premises. If the tenant does not vacate the premises prior the constable may forcibly the remove the tenant. A fee of $35 will be charged for issuing the writ.
The writ of possession will be issued 10 days after the date of the judgment is in favor of the landlord.
If the tenant remains in the rental unit after the writ is issued, possession of the rental unit will be forcibly returned to the landlord.
The tenant will have 24 hours to move out of the rental unit before the constable returns to forcibly remove them.
Step 6: Constable Returns Property to Landlord
If the tenant leaves their personal possessions on the premises, the landlord may remove and must store their possessions at the evicted tenant’s expense. The possessions shall be stored for 7 days. If the tenant does not claim their possessions, it shall be considered as abandoned.
Delaware Eviction Process Timeline
In Delaware, an eviction can be completed in 1 to 3 months but can take longer depending on the reason for eviction, whether the eviction is contested, which days courts are (or aren’t) in session and other various possible delays.
Below are the parts of the Delaware eviction process outside the control of landlords for cases that go uncontested.
| Step | Estimated Time |
|---|---|
| Initial Notice Period | 5-60 Calendar Days |
| Court Issuing Summons | 5-30 Business Days |
| Court Serving Summons | 3-21 Business Days |
| Tenant Response Period | Not Required |
| Court Ruling | 3-21 Business Days |
| Court Serving Writ of Possession | 10 Business Days |
| Final Notice Period | 24 Hours |
Flowchart of Delaware Eviction Process
Delaware Eviction Court Fees
The average cost of an eviction in Delaware for all filing, court, and service fees is $150. Service fees may vary depending on the county.
| Fee | Justice of the Peace |
| Initial Court Filing | $45 |
| Summons Service | ~$30 |
| Writ of Possession Issuance | $35 |
| Writ of Possession Service | $40 |
| Notice of Appeal (Optional) | $60 |
Sources
- 1 25 DE Code §5502 (2020)
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(a) A landlord or the landlord’s agent may, any time after rent is due…demand payment thereof and notify the tenant in writing that unless payment is made within a time mentioned in such notice, to be not less than 5 days after the date notice was given or sent, the rental agreement shall be terminated.
- 2 25 DE Code §5106 (2020)
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(c) The landlord may terminate any rental agreement, other than month-to-month agreements, by giving a minimum of 60 days’ written notice to the tenant prior to the expiration of the term of the rental agreement…(d) Where the term of the rental agreement is month-to-month, the landlord or tenant may terminate the rental agreement by giving the other party a minimum of 60 days’ written notice…
- 3 25 DE Code §5716 (2020)
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When a final judgment is rendered in favor of the plaintiff in a proceeding brought against a tenant for failure to pay rent…the tenant may stay all proceedings on such judgment by paying all rent due at the date of the judgment and the costs of the proceeding …within 10 days of the final judgment being rendered for the plaintiff…
- 4 25 DE Code §5513 (2020)
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(a) If the tenant breaches any rule or covenant which is material to the rental agreement, the landlord shall notify the tenant of such breach in writing, and shall allow at least 7 days after such notice for remedy or correction of the breach. This section shall not apply to late payment of rent which is covered under § 5502 of this title.
- 5 25 DE Code §5513 (2020)
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(a)(3) …a material breach of…a municipal, county or state code, ordinance or statute… (b) When a breach by a tenant causes or threatens to cause irreparable harm to any person or property, or the tenant is convicted of a class A misdemeanor or felony during the term of the tenancy which caused or threatened to cause irreparable harm to any person or property…
- 6 25 DE Code §5705 (2020)
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(a) The notice of hearing and the complaint shall be served at least 5 days and not more than 30 days before the time at which the complaint is to be heard.
- 7 25 DE Code §5113 (2020)
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(a) …by leaving a copy thereof at the person’s rental unit or usual place of abode with an adult person residing therein…(b) …by registered or certified mail or first-class mail as evidenced by a certificate of mailing… (c) (1) Posting of the notice on the rental unit, when combined with a return receipt or certificate of mailing; or (2) Personal service by a special process-server…
- 8 25 DE Code §5712 (2020)
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(b) A party may, within 10 days of the entry of a default judgment or a nonsuit, file a motion with the court to vacate the judgment and if, after a hearing on the motion, the court finds that the party has satisfied the requirements of Justices of the Peace Civil Rule 60(b), it shall grant the motion and permit the parties to elect a trial before a single judge or a jury trial.
- 9 25 DE Code §5710 (2020)
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At the time when an issue is joined, the court, at the application of either party and upon proof to its satisfaction by affidavit or orally that an adjournment is necessary to enable the applicant to procure necessary witnesses or evidence or by consent of all the parties who appear, may adjourn the trial, but not more than 10 days, except by consent of all parties.
- 10 25 DE Code §5715 (2020)
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(b) The officer to whom the writ of possession is directed and delivered shall give at least 24 hours’ notice to the person or persons to be removed and shall execute it between the hours of sunrise and sunset.
- 11 Del. Code tit. 25 § 5113
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Source Link
(a) Any notice or service of process required by this Code shall be served either personally upon the tenant or landlord or upon the tenant by leaving a copy thereof at the person’s rental unit or usual place of abode with an adult person residing therein; and upon the landlord by leaving a copy thereof at the landlord’s address as set forth in the lease or as otherwise provided by landlord with an adult person residing therein, or with an agent or other person in the employ of the landlord whose responsibility it is to accept such notice. If the landlord is an artificial entity, pursuant to Supreme Court Rule 57, service of the notice or process may be made by leaving a copy thereof at its office or place of business as set forth in the lease with an agent authorized by appointment or by law to receive service of process. (b) In lieu of personal service or service by copy of the notice or process required by this Code, a copy of such notice or process may be sent by registered or certified mail or first-class mail as evidenced by a certificate of mailing postage-prepaid, addressed to the tenant at the leased premises, or to the landlord at the landlord’s business address as set forth in the lease or as otherwise provided by landlord, or if the landlord is an artificial entity, pursuant to Supreme Court Rule 57, at its office or place of business. The return receipt of the notice, whether signed, refused or unclaimed, sent by registered or certified mail, or the certificate of mailing if sent by first-class mail, shall be held and considered to be prima facie evidence of the service of the notice or process. (c) In the alternative, service of notice or process may also be obtained by 1 of the following 2 alternatives: (1) Posting of the notice on the rental unit, when combined with a return receipt or certificate of mailing; or (2) Personal service by a special process-server appointed by the Court. - 12 Del. R. Civ. P. Super. Ct. 6(e)
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Additional time after service by mail. Whenever a party has the right to or is required to do some act or take some proceeding within a prescribed period after being served and service is by mail, 3 days shall be added to the prescribed period.Source Link
