Customize a Delaware eviction notice based off cause (above) and read further to learn about what happens AFTER a notice is posted, how long the eviction process takes and other aspects of Delaware eviction law.
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What’s an Eviction Notice?
An eviction notice is a legal form of disclosure that lets a tenant know that they are in clear violation of their lease agreement, and either need to correct the issue or vacate the premises. Despite their best efforts at screening tenants, Delaware landlords must often follow through with eviction proceedings. An eviction in Delaware is known as a summary possession, and is governed under the Delaware Residential Landlord/Tenant Code (which is often simply referred to as “The Code.) Knowing when there is a grounds for eviction as well as how to proceed with a summary possession is important if property owners are to legally assert their rights. Here is a step-by-step guide to providing an eviction notice in Delaware.
Evicting a Tenant in Delaware
In any state, it is essential for a landlord to follow a specific series of steps to evict a tenant from a rental property. Adhering to these steps carefully will ensure that the eviction process is performed legally and without negative repercussions for the landlord. If it is necessary to evict a tenant in the state of California, the following step-by-step process may serve as a basic framework for a landlord to follow, with assistance from their legal team:
Determine the Reason for Eviction
Before filing for summary possession, you must provide ample notice. This notice will depend on your reason for filing an eviction notice, and may include one of the following:
- Five-day notice to pay rent. The tenant must pay rent within this timeframe or vacate the property.
- Seven day notice to remedy. This allows the tenant to correct bad behavior within seven days.
- Seven-day unconditional quit notice. This notice allows you to take possession without giving the tenant an opportunity to correct bad behavior. Use this notice whenever there has been a serious breach of the lease that also violates one or more laws.
These timeframes only apply to regular housing units. For mobile home communities, Section 7105 requires landlords to provide at least 3 years’ notice before converting the land to other uses. This clause applies to instances where tenants rent the space that their mobile home sits on. When mobile homes and land are rented as a single unit, the standard timeframes apply instead.
Delivering the Notice
In your notice, add a line or two stating that if the requested conditions are not met, you will then file for summary possession. Include a signature line as well as space for a time and date stamp. The Code does not specify how this notice is to be delivered; however, courts are very strict about landlords meeting the required timeframes. Accordingly, you should carefully document the delivery of this notice by sending it through certified mail with return receipt requested.
Filing for Summary Possession
Once you have provided the required notice, you are then eligible to file for summary possession. According to Chapter 57 of The Code, jurisdiction lies with the Justice of the Peace court for the county in which the rental property is located.
If a county has more than one Justice of the Peace Court, the one that has territorial jurisdiction over the area in which the rental property is located will prevail. Justice of the Peace courts are given geographical maps that you may use to determine territorial jurisdiction.
Always verify territorial jurisdiction if your county has more than one Justice of the Peace Court. Filing with the wrong court will result in your case being thrown out, in which case you will have to start from scratch.
Process for Filing a Complaint
The process begins with the filing of a complaint against the tenant. This is similar to any other complaint filed in any other civil court case. It must contain a few provisions, which are set out in Section 5707 and include:
- Your interest in the rental property
- The defendant’s interest in the rental property
- The defendant’s relationship to you
- A description of the rental unit in question
- A set of facts upon which the complaint is based
- The type of relief sought by the court (summary possession)
You must also include a copy of the written notice you previously provided. Attach that document to the back of your complaint as an official exhibit. Remember that in Delaware, summary possession cannot proceed unless you have provided ample notice first.
Along with your complaint, you will need to pay the appropriate filing fee before court action can commence. This amount varies between counties, so you will need to check with your local court clerk to find out what the filing fees are.
Information to Include in a Complaint
The complaint will include the names of the parties, the court in which it is being heard in, and a brief listing of the facts. State them in chronological order whenever possible so that they are easy to understand.
In your complaint, you will also state the type of action you want the court to provide you, which in this case is an eviction of the bad tenant. You will sign and date the complaint if you are preparing the document yourself. If using an attorney, your lawyer will sign as well.
Additional Information for Seven-Day Unconditional Quit
As mentioned, you may provide a seven-day unconditional quit notice whenever there has been a serious breach of the lease. You may also use it whenever a tenant has committed a Class A misdemeanor or felony if that crime “caused or threatened to cause irreparable harm to any person or property.”
When providing this type of notice, you will need to include some additional information in your complaint. For example, you should spell out the exact law or rule that was violated, and provide a detailed explanation of what happened. In cases where a crime was committed, a copy of the police report should be included as well.
Setting a Hearing Date
According to Section 5705 (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.” The Justice of the Peace Court will calculate the date once they receive proof of service.
Tenant’s Answer to your Complaint
The defendant in any civil case must provide an answer to the Plaintiff’s complaint. In issues related to summary possession in Delaware, this answer may be either orally or in writing. So the case is not necessarily thrown out just because you do not receive a written answer prior to your hearing date.
Court Hearing Procedures
During the court hearing, the tenant will provide an oral answer if he or she has not already given a written one. You will also submit evidence such as photographs or other written warnings you may have provided the tenant. In matters pertaining to unpaid rent, you should include a payment history. A judge will also allow both parties to have witnesses testify on their behalf.
Once all evidence has been presented, the presiding judge will make a determination. If the tenant fails to show, you should be eligible for default judgement under Section 5712, provided you can prove that the required notice to vacate was given.
Requesting a Jury Trial
Summary possession hearings are normally presented in front of a judge. However, either party may request a jury trial instead. As the landlord, you are required to do so at the time you file your complaint. Your tenant on the other hand has up to ten days after being served to request a jury trial. Upon requesting a jury trial, a judge will select six impartial persons from the current jury list to serve as jurors.
Removing and Storing Personal Property
If the judge or jury rules in your favor, the tenant will have 24 hours to remove his or her personal possessions from the rental unit. After that time, you may remove and store them at the renter’s expense for up to seven days. If the renter fails to claim the property and reimburse you for storage expenses within that seven days, you may then dispose of the belongings.
When storing property, you should make every effort to prevent items from becoming damaged. A separate lawsuit could ensue if a tenant deems you were negligent in removing and storing his or her belongings.
Removing the Tenant
After being handed a judgement, most tenants will choose to leave on their own. When individuals fail to leave, a law enforcement officer will physically remove them. Landlords should not become involved in this process, and should also not attempt to take matters into their own hands by changing locks, barricading doors or other such action.
Section 5313 covers the unlawful ouster of a tenant from rental property. It states that
“if removed from the premises or excluded therefrom by the landlord or the landlord’s agent, except under color of a valid court order authorizing such removal or exclusion, the tenant may recover possession or terminate the rental agreement. The tenant may also recover treble the damages sustained or an amount equal to 3 times the per diem rent for the period of time the tenant was excluded from the unit, whichever is greater, and the costs of the suit excluding attorneys’ fees.”
In other words, a positive outcome can quickly turn sour if you attempt to handle things on your own. You could be subject to heavy losses, including the cost of legal fees. If you have difficulty getting a tenant to leave, please contact your local law enforcement agency. Provide them with the court order that requires your renter to leave, and most agencies will resolve the matter within 24 hours.
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