Tenants in Delaware have the legal right to repairs for issues that place the property in violation of state health and safety standards. To exercise this right, they must properly notify the landlord in writing and allow 15 days for the repairs to be made.
Delaware Landlord Responsibilities for Repairs
Delaware landlords are responsible for keeping all of the following in good working condition:
- Common areas.
- Anything required to comply with local codes.
- Anything impacting health, safety, or habitability.
If any of the following features are provided by the terms of the lease, landlords are also responsible for maintaining them properly:
- Heating.
- Hot water.
- Electricity.
- Plumbing (if the landlord agrees to supply water).
If any of the above stops working properly, and the tenant isn’t at fault for the damage, the landlord is the one responsible for making the repairs necessary to fix it.
What Repairs Are Tenants Responsible for in Delaware?
Delaware tenants are responsible for repairing any damage they cause to the property which affects health and safety.
The landlord and tenant can write an agreement, separate from the lease, requiring the tenant to handle specific maintenance. This can’t include work needed to bring a noncomplying property into code compliance, and the tenant has to receive some benefit in exchange for agreeing to take on the landlord’s duties.
Requesting Repairs in Delaware
Delaware tenants must request repairs by writing to the landlord promptly after noticing a need for repairs, although non-written notice is acceptable if the tenant proves it effectively communicated the situation (for example, if notice was verbal but the landlord gave a written reply showing an understanding of the issue).
How Long Does a Landlord Have To Make Repairs in Delaware?
Delaware landlords usually have 15 days to make repairs after notice. In the first month of occupancy, however (and for six months after, if the same issue recurs), the tenant can end the lease anytime the landlord fails to repair, even with a promised time frame under 15 days.
Can the Landlord Refuse To Make Repairs in Delaware?
Delaware landlords cannot refuse to make repairs that are their responsibility.
Do Landlords Have To Pay for Alternative Accommodation During Repairs in Delaware?
Delaware landlords generally don’t have to pay for alternative accommodation during repairs. However, anytime the landlord fails to supply agreed utilities, the tenant can obtain alternative accommodation after 48 hours’ notice, stop rent payments, and bill the landlord for additional expenses up to half the monthly rent.
Tenant’s Rights if Repairs Aren’t Made in Delaware
Delaware tenants, depending on the situation, can cancel the rental agreement if the landlord doesn’t make timely repairs. They can also sue for damages or get an injunction to force repairs. If the failure is willful or negligent, or interrupts promised utilities, the tenant can also obtain substitute housing.
Out of court, tenants can also withhold rent and repair and deduct, if they follow the statutory requirements and limitations.
Can the Tenant Withhold Rent in Delaware?
Delaware tenants may withhold up to two-thirds of the proportionate daily rent, when the landlord doesn’t remedy his failure to supply agreed utilities. While it’s technically not considered rent withholding, a tenant who’s repairing and deducting can also hold back up to half the monthly rent, depending on the situation.
Can the Tenant Repair and Deduct in Delaware?
Delaware tenants can repair and deduct from rent. The tenant can have repairs done to professional standards 10 days after delivering a repair request, if the landlord hasn’t yet gotten at least an estimate for repair costs. The tenant can also repair 30 days after notice, if repairs aren’t completed.
The allowed deduction is $400 or half the monthly rent (whichever is less), and the tenant must provide the landlord copies of receipts to prove their repair costs amounted to at least the deducted amount. Deduction is not allowed if the tenant is behind or rent, or caused the issue.
Can the Tenant Break Their Lease in Delaware?
Delaware tenants can break leases fifteen days after written notice, for failure to repair issues that weren’t the tenant’s responsibility, or other uncorrected violations of the rental agreement.
Tenants can move out and break the lease immediately, without a court process, when a condition makes the property uninhabitable or poses an immediate and imminent threat to the health and safety of a tenant (for example, if the floor begins to collapse).
Can the Tenant Sue in Delaware?
Delaware tenants can sue, when the landlord doesn’t make timely repairs. The tenant can sue to force repairs or recover monetary damages.
Can the Tenant Report the Landlord in Delaware?
Delaware tenants can report landlords for code violations that affect health or safety. Tenants should usually report to the local inspections or code enforcement department. If an inspecting officer finds a violation, the tenant could cancel the lease, sue to force repairs, or possibly withhold rent.
Landlord Retaliation in Delaware
It’s illegal for Delaware landlords to retaliate with raised rent, reduced services, or threatened eviction against tenants who have taken one of the following protected actions in the past 90 days:
- Reporting health and safety violations (or a government officer doing the same)
- Complaining to the landlord about maintenance
- Pursuing rights under the law or rental agreement
- Participating in a tenant organization
The law allows an exception when the landlord can prove a non-retaliatory, good-faith reason for the alleged retaliatory action. For example, a landlord who raises rent proportionately in response to a large increase in property tax is not retaliating, even if a tenant has recently complained about maintenance.
Sources
- 1 Del. Code Ann. § 5306(a) & (b) (2022)
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“(a) If there exists any condition which deprives the tenant of a substantial part of the benefit or enjoyment of the tenant’s bargain, the tenant may notify the landlord in writing of the condition and, if the landlord does not remedy the condition within 15 days following receipt of notice, the tenant may terminate the rental agreement. If such condition renders the premises uninhabitable or poses an imminent threat to the health, safety or welfare of the tenant or any member of the family, then tenant may, after giving notice to the landlord, immediately terminate the rental agreement without proceeding in a Justice of the Peace Court.
“(b) The tenant may not terminate the rental agreement for a condition caused by the want of due care by the tenant… [and] shall remain obligated under the rental agreement.”
Source Link - 2 Del. Code Ann. § 5305(a) (2022)
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“The landlord shall, at all times during the tenancy: (1) Comply with all applicable provisions of any state or local statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the rental unit and the property of which it is a part; (2) Provide a rental unit which shall not endanger the health, welfare or safety of the tenants or occupants and which is fit for the purpose for which it is expressly rented; (3) Keep in a clean and sanitary condition all common areas of the buildings, grounds, facilities and appurtenances thereto which are maintained by the landlord; (4) Make all repairs and arrangements necessary to put and keep the rental unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of the tenancy; and (5) Maintain all electrical, plumbing and other facilities supplied by the landlord in good working order.”
Source Link - 3 Del. Code Ann. § 5305(b) (2022)
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“If the rental agreement so specifies, the landlord shall: (1) Provide and maintain appropriate receptacles and conveniences for the removal of ashes, rubbish and garbage and arrange for the frequent removal of such waste; and (2) Supply or cause to be supplied, water, hot water, heat and electricity to the rental unit.”
Source Link - 4 Del. Code Ann. § 6631(a) & (c) (2022)
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“Each owner of a residential occupancy… shall… install and maintain smoke detection devices as required by this chapter, with the following exception: Where… the rental, lease agreement or contract is for a period of 1 month or more… [the tenant shall maintain] an operable battery in the smoke detection device…”
Source Link - 5 Del. Code Ann. § 6602C(a) & (c) (2022)
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“Each owner of a lodging establishment shall install carbon monoxide detection devices in accordance with the installation requirements in § 6603C of this title if a dwelling unit or sleeping unit has either of the following: (1) A fossil-fuel burning heater or appliance, a fireplace, or other feature, fixture, or element that emits carbon monoxide as a byproduct of combustion. (2) An attached garage… The owner of a lodging establishment must install and maintain carbon monoxide detection devices required under this chapter, unless… the rental agreement, lease agreement, or contract is for a period of 1 month or more… [in such case] the tenant is responsible for maintaining an operable battery in any carbon monoxide detection devices…”
Source Link - 6 Del. Code Ann. § 5305(c) (2022)
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“Evidence of compliance with the applicable building and housing codes shall be prima facie evidence that the landlord has complied with this chapter or with any other chapter of Part III of this title.” Del. Code Ann. § 5305(c) (2022) But see Brown v. Robyn Realty Co., 367 A.2d 183, 193 (Del. Super. Ct. 1976) (“Defendant contends that certain of plaintiffs’ claims are barred by failure of the violation notice of the Wilmington Department of Licenses and Inspections to list those items as violations… [citing that] ‘[e]vidence of compliance with an applicable housing code shall be prima facie evidence that the landlord has complied with this chapter . . .’. It will be noted that the section refers to prima facie evidence. By definition it is rebuttable.”)
Source Link - 7 Del. Code Ann. § 5305(c) (2022)
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“The landlord and tenant may agree by a conspicuous writing, separate from the rental agreement, that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling, but only if: (1) The particular work to be performed by the tenant is for the primary benefit of the rental unit; and (2) The work is not necessary to bring a noncomplying rental unit into compliance with a building or housing code, ordinance or the like; and (3) Adequate consideration, apart from any provision of the rental agreement, or a reduction in the rent is exchanged for the tenant’s promise. In no event may the landlord treat any agreement under this subsection as a condition to any provision of rental agreements; and (4) The agreement of the parties is entered into in good faith and is not for the purpose of evading an obligation of the landlord.”
Source Link - 8 Del. Code Ann. § 5113 (2022)
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The law asks that notice be written, and either personally served or officially mailed; see Del. Code Ann. § 5113 (2022). But see Del. Code Ann. § 5114 (2022) (“A person has notice of a fact if: (1) The person has actual knowledge of it; (2) The person has received a notice pursuant to the provisions of this Code; or (3) From all the facts and circumstances known at the time in question, such person has reason to know that it exists.”) See also Gillespie v. Chel. on the Square, No. 09A-05-009-JOH, 7 (Del. Super. Ct. Jul. 30, 2010) (“The undisputed record below was that Gillespie had actual notice of both possible inspections. That met the statutory requirement of notice found in § 5114. There was no error in the Court of Common Pleas. That actual notice superseded any possible notice issues arising from § 5113.”)
Source Link - 9 Del. Code Ann. § 5505(a) (2022)
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“Any defective condition of the premises which comes to the tenant’s attention, and which the tenant has reason to believe is the duty of the landlord or of another tenant to repair, shall be reported in writing by the tenant to the landlord as soon as is practicable. The tenant shall be responsible for any liability or injury resulting to the landlord as a result of the tenant’s failure to timely report such condition.”
Source Link - 10 Del. Code Ann. § 5302(a) & (b) (2022)
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“(a) If the landlord fails to substantially conform to the rental agreement… the tenant may, on written notice to the landlord, terminate the rental agreement and vacate the premises at any time during the first month of occupancy, so long as the tenant remains in possession in reliance on a promise, whether written or oral, by the landlord to correct all or any part of the condition…
“(b) If the tenant remains in possession in reliance on [such] a promise… and if substantially the same act or omission… recurs within 6 months, the tenant may terminate the rental agreement upon at least 15 days’ written notice, which notice shall specify the breach and the date of termination of the rental agreement.”
Source Link - 11 Del. Code Ann. § 5308(b) (2022)
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“If the tenant has given the notice required under subsection (a) of this section [notice after failure to remedy continues >48hrs] and remains in the rental unit and the landlord still fails to provide water, hot water, heat and electricity… the tenant may: …Upon notice to the landlord, procure equivalent substitute housing for as long as heat, water, hot water or electricity is not supplied, during which time the rent shall abate, and the landlord shall be liable for any additional expense incurred by the tenant, up to 1/2 of the amount of abated rent. This additional expense shall not be chargeable to the landlord if landlord is able to show impossibility of performance.”
Source Link - 12 Norfleet v. Mid-Atlantic Realty Co., C.A. No. 95C-11-008 WLW, (Del. Super. Ct. Apr. 20, 2001)
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“One similarity between the covenant of quiet enjoyment and the warranty of habitability is the damages that flow from a breach of either one. In both instances the damages are contractual [therefore, monetary by default] in nature.” Norfleet v. Mid-Atlantic Realty Co., C.A. No. 95C-11-008 WLW, (Del. Super. Ct. Apr. 20, 2001) See also Continental Coach Crafters Co. v. Fitzwater, 415 A.2d 785, 792 (Del. Super. Ct. 1980) “The Justice of the Peace Courts have exclusive jurisdiction in both Chapter 57 and Chapter 59 proceedings, 25 Del. C. 5701 and 5901, and the grant of power to fashion relief contained in § 5907(c)… via orders ancillary to discharge of a receiver is sufficiently broad to encompass [injunctive relief.]”
Source Link - 13 Del. Code Ann. § 5306(c) (2022)
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“If the condition referred to in subsection (a) of this section [material breach of repair duty] was caused wilfully or negligently by the landlord, the tenant may recover the greater of: (1) The difference between rent payable under the rental agreement and all expenses necessary to obtain equivalent substitute housing for the remainder of the rental term; or (2) An amount equal to 1 month’s rent and the security deposit.”
Source Link - 14 Del. Code Ann. § 5117(a) (2022)
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“For any violation of the rental agreement or this Code, or both, by either party, the injured party shall have a right to maintain a cause of action in any court of competent civil jurisdiction.”
Source Link - 15 Del. Code Ann. § 5308(b)(3) (2022)
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“Upon written notice to the landlord, tenant may withhold 2/3 per diem rent accruing during any period when hot water, heat, water or equivalent substitute housing is not supplied.”
Source Link - 16 Del. Code Ann. § 5307(a) (2022)
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“(a) If the landlord of a rental unit fails to repair, maintain or keep in a sanitary condition the leased premises or perform in any other manner required… and, if after being notified in writing by the tenant to do so, the landlord: (1) Fails to remedy such failure within 30 days from the receipt of the notice; or (2) Fails to initiate reasonable corrective measures where appropriate, including, but not limited to, the obtaining of an estimate of the prospective costs of the correction, within 10 days from the receipt of the notice; then the tenant may immediately do or have done the necessary work in a professional manner. After the work is done, the tenant may deduct from the rent a reasonable sum, not exceeding $400, or 1/2 of 1 month’s rent, whichever is less, for the expenditures by submitting to the landlord copies of those receipts covering at least the sum deducted.”
Source Link - 17 Del. Code Ann. § 5307(b) - (d) (2022)
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“(b) In no event may a tenant repair or cause anything to be repaired at the landlord’s expense when the condition complained of was caused by the want of due care by the tenant, a member of the tenant’s family or another person on the premises with the tenant’s consent.
“(c) A tenant who is otherwise delinquent in the payment of rent may not take advantage of the remedies provided in this section.
“(d) The tenant is liable for any damage to persons or property where such damage was caused by the tenant or by someone authorized by the tenant in making said repairs.”
Source Link - 18 Del. Code Ann. § 5516(b) (2022)
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“A retaliatory act is an attempt on the part of the landlord to: pursue an action for summary possession or otherwise cause the tenant to quit the rental unit involuntarily; demand an increase in rent from the tenant; or decrease services to which the tenant is entitled after: (1) The tenant has complained in good faith of a condition in or affecting the rental unit which constitutes a violation of a building, housing, sanitary or other code or ordinance to the landlord or to an authority charged with the enforcement of such code or ordinance; or (2) A state or local government authority has filed a notice or complaint of such violation of a building, housing, sanitary or other code or ordinance; or (3) The tenant has organized or is an officer of a tenant’s organization; or (4) The tenant has pursued or is pursuing any legal right or remedy arising from the tenancy.”
Source Link - 19 Del. Code Ann. § 5516(c) (2022)
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“If the tenant proves that the landlord has instituted any of the actions set forth in subsection (b) of this section within 90 days of any complaints or act as enumerated above, such conduct shall be presumed to be a retaliatory act.”
Source Link - 20 Del. Code Ann. § 5516(d) (2022)
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There is an extensive list of potentially allowed exceptions for good-faith landlord conduct. See Del. Code Ann. § 5516(d) (2022) – for example, it’s not retaliation to increase rent if the landlord is simply passing along substantially increased costs not associated with the tenant’s repair situation, and it’s not retaliation to start an action for possession if the landlord wants to use the premises as his own residence or else take another action that would remove the premises from a rental state for a substantial length of time.
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