Steps of the eviction process in Delaware:
Timeline. Evicting a tenant in Delaware can take around 1-3 months , depending on the type of eviction. If tenants request a continuance or jury trial, the process can take longer (read more).
Below are the individual steps of the eviction process in Delaware.
Step 1: Notice is Posted
Landlords in Delaware can begin the eviction process for several reasons, including:
- Nonpayment of Rent – Once rent is past due, notice must be served to give the tenant the option to pay rent in order to avoid eviction.
- Violation of Lease Terms / Rental Agreement – If a tenant violates a provision of a written lease/rental agreement, the landlord must give the tenant the opportunity to correct the issue, unless the breach causes “irreparable harm.”
- No Lease / End of Lease Term (Tenant at Will) – If there is no lease or the term of the lease has ended, the landlord does not need any additional reason to end the tenancy as long as proper notice is given.
- Illegal Activity – If a tenant or any other occupant of the rental unit is engaged in illegal activity, the landlord is not required to give tenants prior written notice.
- Retaliatory Evictions. It is illegal for a landlord to evict a tenant for complaining to the landlord or to the appropriate local or government agency regarding the property. It is also illegal for a landlord to evict a tenant for joining, supporting, or organizing a tenant organization or union.
- Evicting a Squatter. If the individual occupying the property did not have the permission of the landlord when initially moving in, does not have a lease (or verbal agreement) and has no history of paying rent, then a landlord/tenant relationship may not be established. As a result, the normal eviction process may not be applicable (read more).
Each possible ground for eviction has its own rules for how the process starts.
Eviction Process for Nonpayment of Rent
A landlord is allowed to evict a tenant for failing to pay rent on time.
According to Delaware law, rent is considered late the day after it’s due; grace periods (if any) are addressed in the rental agreement.
Once rent is past due, the landlord must provide a 5-Day Notice to Pay if the landlord wants to file an eviction action with the court, allowing the tenant to pay the past-due rent amount in full within 5 days in order to avoid eviction.
If the tenant does not pay the rent due by the end of the notice period and remains on the property, the landlord may proceed with the eviction process.
Eviction Process for Violation of Lease Terms / Rental Agreement
A tenant can be evicted in Delaware if they do not uphold their responsibilities under the terms of a written lease/rental agreement.
Delaware landlords must provide tenants with a 7-Day Notice to Comply, giving tenants 7 days to correct the issue in order to avoid eviction.
Typical lease violations under this category could include things like damaging the rental property, having too many people residing in the rental unit, and having a pet when there’s a no-pet policy.
For violations of the lease/rental agreement that cause or could cause “irreparable” harm to another tenant/the landlord, prior written notice is not required.
Note that illegal activity is not included in this category.
If the tenant fails to correct the issue within the deadline/remains on the property after the notice period expires, the landlord may proceed with the eviction process.
Eviction Process for No Lease / End of Lease
In the state of Delaware, if tenants “hold over,” or stay in the rental unit after the rental term has expired, then the landlord must give tenants notice before evicting them. This can include tenants without a written lease and week-to-week and month-to-month tenants.
Often this type of eviction applies to tenants who are at the end of their lease and the landlord doesn’t want to renew.
Regardless of the length or type of tenancy, Delaware landlords are required to give all tenants at least 60 days’ written notice to vacate the rental unit.
If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
Eviction Process for Illegal Activity
Under Delaware law, landlords are not required to provide written notice prior to beginning an eviction action for tenants who are involved in illegal activity.
In Delaware, illegal activity includes:
- Conviction of a class A misdemeanor which causes/threatens to cause irreparable harm to person/property
- Conviction of a felony which causes/threatens to cause irreparable harm to person/property
- Any action which causes/threatens to cause irreparable harm to person/property
In these cases, landlords may proceed directly to step 2 below without giving tenants prior written notice.
Step 2: Complaint is Filed and Served
As the next step in the eviction process, Delaware landlords must file a complaint in the appropriate Justice of the Peace court. In the state of Delaware, this costs $45 in filing fees.
The summons and complaint must be served on the tenant by a constable5-30 days prior to the hearing for all eviction actions, through one of the following methods :
- Giving a copy to the tenant in person
- Leaving a copy at the tenant’s residence with an 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.
5-30 days. The summons and complaint must be served at least 5, but not more than 30, days prior to the eviction hearing.
Step 3: Court Hearing and Judgment
Delaware state law doesn’t 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 (“contest”) 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.
It should be noted that 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.
A few days to a few weeks, depending on how busy the court’s trial schedule is and whether a continuance or jury trial is requested.
Step 4: Writ of Possession Is Issued
The writ of possession is the tenant’s final notice to leave the rental unit before the sheriff returns to the property to forcibly remove the tenant.
The writ of possession will be issued 10 days after the date of the judgment 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.
10 days. The writ of possession will be issued no earlier than 10 days after the judgment is entered in favor of the landlord.
Step 5: Possession of Property is Returned
Once the constable receives the writ of possession, they must give tenants 24 hours’ notice to move out prior to returning to the rental unit to forcibly the remove the tenant if the tenant still remains on the property.
24 hours. The tenant will have 24 hours to move out of the rental unit before the constable returns to forcibly remove them.
Delaware Eviction Process Timeline
Below is a summary of the aspects outside of the landlord’s control that dictate the amount of time it takes to evict a tenant in Delaware. With that being said, these estimates can vary greatly, and some time periods may not include weekends or legal holidays.
- Initial Notice Period – between 5 and 60 days, depending on the notice type and reason for eviction.
- Issuance/Service of Summons and Complaint – 5-30 days before the eviction hearing.
- Court Hearing and Ruling on the Eviction – A few days to a few weeks; more if a continuance/jury trial is requested.
- Issuance of Writ of Possession – 10 days after the judgment in favor of the landlord is issued.
- Return of Possession – 24 hours after the writ is posted.