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Read further to learn more about month-to-month residential lease agreements in Delaware, such as what disclosures are required and what else should be included.
What is a Month-to-Month Residential Lease Agreement?
The month-to-month residential lease is an agreement between a landlord and a tenant for one month of residency. This type of lease is automatically renewed each month unless terminated by the landlord or tenant in accordance with state regulations. While it is not legally advised, if there is no verbal or written residential lease agreement, it is implied to operate on a month-to-month basis.
Delaware laws regarding month-to-month residential lease agreements are found in the Delaware Residential Landlord-Tenant Code, which is Part III of Title 25.
A compilation of the Landlord Tenant Code is available for download.
A month-to-month residential agreement has similar requirements under Delaware law as a rental agreement for a longer time. The minimum term for this type of agreement is 60 days because it has a requirement to give 60 days’ notice of termination. Under Delaware law, Title 25 – chapter 51 a month-to-month agreement allows either the tenant or the landlord to give 60 days notice to terminate the agreement.
Delaware and federal laws require a landlord to do certain things and give specific disclosures to a potential tenant, which include:
- Building Owner, Landlord, or Resident Agent: The lease must disclose the name(s) and business address for the owner or a resident agent (property manager) that is appointed by the owner to be the landlord.
- Written Lease: A lease for one year or longer must be in writing; however, Delaware law allows for a verbal agreement for month-to-month rentals. It is not advisable to forgo having a written agreement because the law requires a landlord to write down the terms of a month-to-month rental if the tenant asks for them. It is better to use a written agreement and the landlord must give a free copy of the agreement to the tenant.
- Lead-Based Paints: If the rental property was built before 1978, give the tenant a copy of the lead-based paint warning disclosure published by the EPA.
Under Delaware law, discrimination is prohibited based on age, color, creed, disability, race, religion, marital status, national origin, occupation, or sex. Discrimination is not allowed because a person has a child or children.
Under Delaware law some provisions are not allowed in a rental agreement. These prohibited provisions include:
- Waiver of Tenant’s Rights: A waiver of any tenant’s rights under the Delaware Residential Landlord-Tenant Code is prohibited.
- Landlord Liability Limit: A provision that limits a landlord’s liability under the Delaware law is prohibited.
- Confession of Judgment: It is prohibited to have a provision in the rental agreement that says that a tenant agrees to liability and a certain amount of damages in advance that can be entered by the landlord as a judgment, as a way to circumvent normal legal processes through the courts.
- Assurance Money: A provision to charge assurance money, other than permitted fees and deposits, to reserve a rental unit for a certain time is prohibited.
- Excessive fees: Fees from a tenant are limited to an application fee, a security deposit, and a pet deposit. A landlord may only charge an applicant the exact amount spent by the landlord to run a credit history report. An application fee is limited to 10% of the monthly rent or a maximum of $50 including the cost for running the credit history report. A tenant may sue to recover damages that are twice the amount of any excessive fees.
- Attorney’s Fees Not Allowed: A provision providing for the recovery of attorney’s fees in a lawsuit brought by either party arising from the tenancy is prohibited.
Prohibited provisions are not enforceable. If a lease includes prohibited provisions, then a tenant can sue for damages. The damages allowed are three month’s rent and the costs of the lawsuit not including any attorney’s fees.
Creating a Month-to-Month Residential Lease Agreement in Delaware
Here are the items that should be included in a month-to-month residential lease agreement for a rental property located in the state of Delaware.
Names and Contact Information
Include the name and the contact information for the landlord or the property manager, if any.
Include the names of the tenant(s).
Give the street address, the city, and the county where the rental unit is located along with a brief description of the unit.
Have a statement that the rental unit cannot be used for any commercial purpose or to store any hazardous items.
List any items that come with the rental unit such as furniture, appliances, or decorations.
Notice for Termination
Under a month-to-month lease, at any time a written termination notice can be given by either the tenant or the landlord. This termination notice should give the other party a minimum of 60 days before the date of termination.
List the monthly rent and the day of the month that the rent is due. Note the address where the rent is to be paid, if different from the landlord’s address and what forms of payment are acceptable.
Late Fee and NSF Fee
Give the number of days allowed after the due date before a late fee applies. State the amount of the late fee per day. State the returned check fee for non-sufficient funds (NSF) if a rent check is sent back by a bank.
Proration of Rent
If a tenant is moving in on a day that is not the first day of the month, the rent for that partial month is calculated by using a proration formula. Multiply the monthly rent times 12 divided by 365 days. This equals the rent per day. Multiply the number of days by this daily rent amount to get the rental amount for a partial month.
List the amount of the security deposit, which cannot exceed one month’s rent under Delaware law.
If pets are allowed, describe any restrictions for them. List the amount of the pet deposit, which cannot exceed one month’s rent under Delaware law. The pet deposit is in addition to the security deposit.
Deposit Escrow Account
Under Delaware law, any deposit given by a tenant must be placed in a federally-insured banking institution in a separate escrow account that is not used for any other purpose besides holding tenants’ deposits. Identify the institution where the security deposits are held.
Deposit Refund Policy
State the refund policy that follows the rules under the law. Delaware law says that within 20 calendar days after a tenant moves out, all deposits, less any legitimate, itemized expenses for cleaning and repairs, must be refunded. The tenant can sue for double the deposit if a landlord fails to follow the law.
Include a provision that the tenant is required to give the landlord a mailing address to be used for sending the refund after the tenant vacates the rental unit.
State that tenant has examined the premises of the rental unit and found that everything is in good and livable condition. Note any repairs that still need to be made.
State that the tenant needs to be available before finally vacating the rental unit for the landlord to conduct a move-out inspection. During this inspection, the landlord should point out to the tenant anything that needs to be cleaned or repaired, which will be charged against the security deposit if not done by the tenant.
Tenant is given access to the rental unit on the date the agreement is effective. If desired, a small deposit can be held by the landlord for keys. Tenant returns those keys when vacating to get the deposit back.
Normally in a month-to-month rental, subleasing is not allowed If a sublease is allowed, such as permitting a tenant to have a roommate, state that the landlord must agree to the subtenant in writing.
Include a statement that if the tenant abandons the rental unit when rent is due for more than seven days, the landlord has the right to terminate the rental agreement, Then, the landlord can sue to regain possession and remove the tenant’s personal property from the rental unit.
Include a copy of the detailed rules for the rental unit that might include parking, guest policy, insurance requirements, smoking, waterbeds, noise, use of common areas, and any other things that are specific for the rental unit.
Landlord’s Right of Entry
Include a statement that the landlord has the right to enter the premises upon giving 24-hours written notice or immediately in the case of an emergency.
State who is responsible for paying utilities and if they are shared how the allocations will be calculated.
Alterations, Maintenance, and Repairs
State the policy about the tenant making alterations and who is responsible for maintenance and repairs. If these responsibilities are shared, list the items that the tenant is responsible for doing.
State what happens in the case of a breach of the terms of the agreement by the tenant. Describe whether or not a breach is curable and how much time is allowed if a tenant can fix the problem.
Give the address for each party to use for legal notices and how the notices are made.
State that the contract is the full agreement and is binding. Say that the written agreement replaces any prior verbal statements made by the parties. State that the agreement is made in the county where the rental unit is located and under Delaware law.
At the end of the agreement, have a place where each party prints their name and signs.