Eviction Process In Delaware

Evicting a tenant in Delaware means following Summary possession in Justice of the Peace Court exactly, start to finish. Skipping a step, whether it's the notice period, how the tenant is served, or the lockout procedure, can restart the clock or expose a management company to liability. This guide walks through each step with the statute or court rule behind it.

Everything below is sourced to Delaware's own statutes and court self-help pages. Specific deadlines and dollar figures do change, so confirm the current text before you rely on a date in a live case.

Overview Of The Eviction Process

Delaware residential evictions are called summary possession actions. They are filed in the Delaware Justice of the Peace Court under Title 25 of the Delaware Code, primarily Chapter 57 (Summary Possession) together with the general Residential Landlord-Tenant Code in Chapters 51, 53, and 55.

• The summary possession action for residential rental units is governed by 25 Del. C. Chapter 57, filed with the Delaware Justice of the Peace Court. (25 Del. C. Ch. 57 (§§5701-5720))
• The Justice of the Peace Court will not hold a hearing on a residential summary possession complaint until the landlord participates in the mandatory eviction diversion program and files an affidavit of participation. (25 Del. C. §5702A)

Lawful Grounds For Eviction

Chapter 57 lists the specific lawful grounds a landlord may rely on for summary possession.

• Holdover after expiration of the lease term without the landlord's permission is a ground for summary possession. (25 Del. C. §5702)
• Nonpayment of rent after proper demand is a ground for summary possession. (25 Del. C. §5702)
• Breach of a lawful lease obligation or covenant, after notice to cure, is a ground for summary possession. (25 Del. C. §5702)
• Conviction of the tenant for a felony or class A misdemeanor causing harm on the premises is a ground for summary possession. (25 Del. C. §5702)
• Holdover by an occupant after a post-foreclosure sale (five or more days after the sale) is a ground for summary possession. (25 Del. C. §5702)

Notice Requirements

Notice periods vary by the type of default and are set out in Chapter 55 (Rental Agreements) of the Landlord-Tenant Code.

• For nonpayment of rent, the landlord must give written notice demanding payment, giving the tenant not less than 5 days after the notice to pay before the rental agreement may be terminated. (25 Del. C. §5502)
• For breach of a lease rule or covenant, the landlord must give written notice specifying the violation and allow at least 7 days after the notice for the tenant to remedy or correct it before pursuing summary possession. (25 Del. C. §5513)
• If the tenant commits a substantially similar breach within one year of a prior cure notice, the landlord may proceed toward summary possession based on the earlier notice without giving a further cure opportunity for the repeat breach. (25 Del. C. §5513)

Filing The Case

The complaint is filed with the Justice of the Peace Court, which provides an interactive form for residential summary possession.

• The action commences by filing a complaint for summary possession with the Justice of the Peace Court; the court provides a Landlord/Tenant Summary Possession interactive form for this purpose. (25 Del. C. §5704)
• Before the court will hold a residential summary possession hearing, the landlord must file a Landlord's Affidavit of Participation in the Eviction Diversion Program at least 5 days before the hearing. (25 Del. C. §5702A)

Serving The Tenant

Service of the notice of complaint and hearing must occur within a defined window before the hearing, by specified methods.

• Notice of the complaint and hearing must be served on the tenant at least 5 days and not more than 30 days before the hearing date. (25 Del. C. §5705)
• Service may be made by personal delivery, or by posting on the premises combined with mailing by certified or first-class mail. (25 Del. C. §5706)

The Tenant's Response

A tenant may answer at the hearing itself, and the mandatory diversion program builds in additional response time before trial.

• A tenant defendant may answer the complaint orally or in writing at the time of the hearing; oral answers are endorsed on the complaint by the court. (25 Del. C. §5709)
• A tenant has 15 calendar days after formal service to register in the eviction diversion program and engage in mediation before the case proceeds to hearing. (25 Del. C. §5702A)

Hearing And Judgment

After diversion requirements are met, the court holds a trial and enters judgment for possession if the landlord prevails.

• Any court-ordered mediation conference under the diversion program must be completed at least 48 hours before the scheduled hearing. (25 Del. C. §5702A)
• At trial the court may adjourn or continue the case for a maximum of 10 days, except by consent of all parties or when witnesses or evidence require more time. (25 Del. C. §5710)
• If the tenant fails to appear or defend, the court may enter a default judgment for the landlord. (25 Del. C. §5712)

The Writ And Lockout

Judgment is enforced through a writ of possession executed by a court officer, with an advance-notice period and rules for property left behind.

• Judgment for possession is enforced through a writ of possession. (25 Del. C. §5715)
• The executing officer must give the tenant at least 24 hours' notice before executing the writ, and execution occurs between sunrise and sunset. (25 Del. C. §5715)
• Personal property remaining after execution may be removed and stored at the tenant's expense for 7 days (30 days for a manufactured home) before further disposition. (25 Del. C. §5715)
• When a landlord regains possession by writ for re-letting purposes, the landlord must change the locks. (25 Del. C. §5715(h))

Prohibited Practices

Delaware separately makes it unlawful for a landlord to remove or exclude a tenant without a valid court order, with treble-damages exposure.

• Except under color of a valid court order authorizing removal or exclusion, a landlord may not remove or exclude a residential tenant from the premises; a tenant unlawfully ousted may recover possession or terminate the rental agreement. (25 Del. C. §5313 ("Unlawful ouster or exclusion of tenant"))
• A tenant unlawfully removed or excluded may recover treble the damages sustained, or three times the per diem rent for the period of exclusion (whichever is greater), plus costs of suit excluding attorney's fees. (25 Del. C. §5313)

Eviction is the last step in a relationship that's already gone wrong. See our guide to Delaware property management laws and regulations for the licensing, disclosure, and trust-account rules that apply before it gets to this point.

Doing It By The Book

Self-help evictions, changing locks, removing doors, shutting off utilities, are illegal in every state and expose a management company to real liability regardless of how clear the nonpayment is. The court process exists because it's the only lawful way to remove a tenant, and skipping a step (a defective notice, bad service) is the single most common reason a case gets dismissed and restarted from day one.

This guide is a starting point for professional managers, not legal advice. For a specific case, a contested filing, or anything unusual, work with a Delaware attorney, and confirm the current text of any rule cited above with Justice of the Peace Court or the Delaware legislature.

Sources

Every fact above is drawn from one of the official sources below.

• 25 Del. C. Ch. 57 (§§5701-5720), Delaware Code Online, Title 25, Chapter 57 (Delaware General Assembly)
• 25 Del. C. §5702A, Delaware Courts, Justice of the Peace Court, Landlord/Tenant page
• 25 Del. C. §5502, Delaware Code Online, Title 25 §5502
• 25 Del. C. §5313 ("Unlawful ouster or exclusion of tenant"), Delaware Code Online, Title 25 §5313