Delaware Eviction Process

Last Updated: August 16, 2022 by Elizabeth Souza

Steps of the eviction process in Delaware:

1. Landlord serves tenant written notice.
2. Landlord files complaint with court (if unresolved).
3. Court serves tenant with summons & complaint.
4. Court holds hearing and issues judgment.
5. Writ of possession is issued.
6. Constable returns possession of property to landlord.

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.

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 or not upholding responsibilities under Delaware law. Even so, proper notice must first be given before ending the tenancy.

Eviction for Nonpayment of Rent

In Delaware, a landlord can evict a tenant for not paying rent on time. To do so, they must first give 5 days’ 
[1]
notice to pay rent or vacate the premises. If the tenant does neither after that time, the landlord can move forward and file an eviction lawsuit.

Unless the lease states otherwise, rent is due at the beginning of each pay period and is considered late in Delaware the day immediately after its due date. So for example, if rent is due on the first of the month, it is considered late starting on the second of the month (if not paid in full). There is no right to a legal grace period (i.e., five days); however, weekends and legal holidays are excluded.

Once rent is considered late, the landlord can begin the eviction process by serving the tenant with proper notice.

Eviction for No Lease or End of Lease

In Delaware, a landlord can evict a tenant without a lease or with a lease that has ended (known as a “holdover tenant” or “tenant at will”). To do so, they must first terminate the tenancy by giving proper notice to move out (60 days for tenants that pay month-to-month).
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Once the tenancy ends, if the tenant remains on the property, the landlord can move forward and file an eviction lawsuit.

Eviction for Violation of Lease or Responsibilities

In Delaware, a landlord can evict a tenant for violating the terms of their lease or not upholding their responsibilities under Delaware landlord-tenant law. Some violations allow the tenant to fix (“cure”) the issue to avoid removal and other violations do not allow the tenant to fix the issue (“incurable”) and must vacate immediately.

If the issue is curable the landlord must give 7 days’ notice
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before proceeding with an eviction and if the issue is incurable the landlord may immediately proceed with an eviction.

Tenant responsibilities include:

• Keeping the unit in a safe and habitable condition.
• Keeping fixtures clean and sanitary.
• Using all fixtures and appliances in a reasonable manner.
• Making small repairs and maintenance.
• Not negligently or deliberately destroying the dwelling unit.
• Not removing or tamper any smoke detector or carbon monoxide detector.
• Not disturbing other tenants or neighbors.

Curable Violations

For more minor offenses, the tenant can remain at the property if they fix the issue within the 7-day notice period.

Examples of curable violations include:

• Having an unauthorized pet, guest or vehicle.
• Parking in an unauthorized area.
• Not maintaining a certain level of cleanliness.

Incurable Violations

For more serious offenses, the tenant isn’t given the opportunity to fix the issue and remain at the property.
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For incurable violations, a tenant must vacate the premises immediately and the landlord can move forward and file an eviction lawsuit without notice.

Examples of incurable violations include:

• 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.

Step 1: Landlord Serves Notice to Tenant

A landlord can begin the eviction process in Delaware by serving the tenant with written notice. The notice must be delivered by one of the following methods:

1. Hand delivering the notice to the tenant.
2. Mailing a copy of the notice via regular mail or certified mail.
3. Leaving the notice in a conspicuous place (i.e., on the front door).
4. Leaving a copy at the tenant’s residence with a competent adult.
5. Posting a copy in a conspicuous place at the rental unit and mailing a copy to the tenant.

It is important for a landlord to always maintain a copy of the signed and served notice as proof of proper service of notice. 

5-Day Notice to Pay Rent or Quit

If a tenant is late on paying rent (full or partial) in Delaware, the landlord can serve them a 5-Day Notice to Pay or Quit. This notice gives the tenant 5 judicial days (not including weekends and legal holidays) to pay the entire remaining balance or vacate the premises.

60-Day Notice to Quit

For a tenant with no lease or a month-to-month lease in Delaware, the landlord must serve them a 60-Day Notice to Quit to end the tenancy. This eviction notice allows the tenant 60 calendar days to move out.

For tenants that don’t pay monthly, the amount of notice does not change.

7-Day Notice to Cure or Vacate

In Delaware, if a tenant commits a minor violation of the terms of their lease or legal responsibilities as a tenant, the landlord can serve them a 7-Day Notice to Cure or Vacate. This eviction notice gives the tenant 7 calendar days to fix the issue or move out.

Step 2: Landlord Files Lawsuit with Court

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 a section called “Concise Statement of the Facts” which includes:

• 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.

Note, 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 within the category of seasonal property.

Step 3: Court Serves Tenant with Summons & Complaint

The summons and complaint must be served on the tenant by a constable within 5-30 days
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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:
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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.

Step 4: Court Holds Hearing & Issues 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
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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
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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
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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’
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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.

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 seven 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.

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.