Delaware Eviction Process

Last Updated: October 18, 2021 by Elizabeth Souza

Timeline. Evicting a tenant in Delaware can take around one to three months, depending on the type of eviction. If tenants request a continuance or jury trial, the process can take longer (read more).

Questions? To chat with a Delaware eviction attorney, Click here

Eviction lawsuits are also known as an “action for summary possession” in Delaware. According to Delaware law, a landlord must win an action for summary possession in order for a lawful eviction of the tenant.  There are procedures and rules the landlord must follow in order for the eviction to be valid. 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 the following grounds for eviction:

  1. 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.
  2. 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.”
  3. 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.
  4. 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.
NOTES
  • 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 five 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.

Generate an official Delaware eviction notice for nonpayment of rent.
Create Document

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 seven days to correct the issue in order to avoid eviction.

Typical lease violations under this category could include violations such as: having a pet when there’s a no-pet policy, damaging the rental property or having too many people residing in the rental unit.

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 and remains on the property after the notice period expires, the landlord may proceed with the eviction process.

Generate an official Delaware eviction notice for noncompliance with lease.
Create Document

Eviction Process for No Lease / End of Lease

In the state of Delaware, if tenants “holdover,” 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.

Generate an official Delaware lease termination letter.
Create Document

Eviction Process for Illegal Activity

If the tenant violates the lease or violates a state law, landlords may choose to give a seven-day unconditional quit notice and must leave within the notice period. Under Delaware law, if a tenant is involved in illegal activity, landlords may choose to use an unconditional quit notice, meaning that the landlords are not required to give the tenant notice nor the opportunity to fix or “cure” the violation. The tenant must leave with their personal possessions immediately. In Delaware, an unconditional quit notice may be used in the following circumstances:

  • Conviction of a Class A misdemeanor which causes or threatens to cause irreparable harm to person or property.
  • Conviction of a felony which causes or threatens to cause irreparable harm to person or property.
  • Any action which causes or threatens to cause irreparable harm to person or property.

If a tenant is in violation of the above, landlords may proceed directly to Step 2 below without giving prior written notice.

Generate an official Delaware lease termination letter.
Create Document

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 complaint must include the names of the landlord and tenant and a statement of facts to determine the grounds for eviction.

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:

  1. Giving a copy to the tenant in person.
  2. Leaving a copy at the tenant’s residence with a competent adult.
  3. Mailing a copy via registered or certified mail.
  4. Mailing a copy via first class mail and providing the court with a certificate of mailing.
  5. 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 within 5-30, 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. 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.

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 vacate the premises. If the tenant does not vacate the premises prior the constable may forcibly the remove the tenant.

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 seven days. If the tenant does not claim their possessions, it shall be considered as abandoned.

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.

  1. Initial Notice Period – between 5 and 60 days, depending on the notice type and reason for eviction.
  2. Issuance/Service of Summons and Complaint – 5-30 days before the eviction hearing.
  3. Court Hearing and Ruling on the Eviction – A few days to a few weeks; more if a continuance/jury trial is requested.
  4. Issuance of Writ of Possession – 10 days after the judgment in favor of the landlord is issued.
  5. Return of Possession – 24 hours after the writ is posted.
Questions? To chat with a Delaware eviction attorney, Click here

Additional Information

Defenses for Tenants for an Eviction Lawsuit. Tenants may have reason to fight the eviction lawsuit. Below are some examples of a tenant’s defenses:

  • Evidence of discriminatory eviction, which is based on the tenant’s religion, race, age, children, sexual orientation, age, occupation or disability.
  • The landlord decides to evict the tenant within a 90-day period of the tenant having complained to the landlord or to a local agency about the premises condition or the joined a tenant’s union. This is also known as a retaliatory eviction.
  • Failure of the landlord to provide a copy of the Delaware Residential Landlord Tenant Code. The tenant could possibly claim ignorance of the law in this case.
  • Failure of landlord to remedy a condition that substantially affects the tenant’s safety or health as long as the tenant has given the landlord a 15-day written notice to remedy the condition.
  • Failure of landlord to provide essential services after a 48-hours written notice to the landlord. The tenant may terminate the agreement, deduct two-thirds of the daily rent until the essential services are provided, or obtain equivalent housing while the services are not provided and deduct the rent owed.

Rental Agreements That Do Not Qualify for Evictions. Evictions may not be filed for the following types of rental agreements:

  1. Nonrenewable rental agreements of 120 days or less in certain areas of Sussex County, Delaware;
  2. Hotel, institutional or fraternal lodgings;
  3. Rental agreements which improvements were made or installed by the tenant and used as a dwelling where the tenant retains ownership or title, or obtains title to the improvements;
  4. Rental agreements in which a recreational vehicle is placed; and
  5. Rental agreements within the category of seasonal property.

Flowchart of Delaware Eviction Process

For additional questions about the eviction process in Delaware, please refer to the official legislation, Delaware General Code §§5106-5113, §5501-5513, and §5701-5716 for more information.