The process of evicting a tenant in Delaware is referred to as “obtaining a summary possession.” A party should only file for a summary possession if they are seeking to actually repossess the property. This action can be filed by a landlord or owner on a tenant who has failed to pay rent or has breached the rental agreement, by a tenant who has been wrongfully kept out of their rental unit by the landlord, and by a new tenant whose term has begun while the former tenant refuses to leave.
Laws – Title 25 Property Residential Landlord-Tenant Code, Chapter 57, Summary Possession
How to Evict
- Step 1 – Send Eviction Notice to Tenant
- Step 2 – Wait to Hear from the Tenant
- Step 3 – File in Court
- Step 4- Set a Hearing Date
- Step 5 – Appear in Court
- Step 6 – File Writ of Restitution
- Step 7 – Repossess the Property
Step 1 – Send Eviction Notice to Tenant
The landlord must identify which type of notice they must serve on the tenant based on the breach of the lease agreement. They must work with a special process server for the Justice of the Peace Court. If the landlord serves the paperwork themselves, they must post the notice and complaint on the rental unit as well as postmark copies of both documents by certified or registered mail within twenty-four hours of posting on the unit.1
- Irreparable Harm (Immediate Notice to Quit): This notice is served when a tenant has threatened or caused irreparable harm to any person or property on the premises. It may also be used if the tenant is convicted of a Class A Misdemeanor during their tenancy.2
- Non-Payment of Rent (5-Day Notice to Quit): This notice is served to a tenant when they fail to pay rent on time. The tenant has a grace period of five (5) business days to pay any overdue rent before the landlord has the right to proceed with the next legal steps.3,4
- Non-Compliance (7-Day Notice to Quit): This notice is served when a tenant breaches any part of the lease agreement. The tenant has seven (7) days to correct the breach before the landlord has the right to proceed with the next legal steps.5
- Month-to-Month Tenancy (60-Day Notice to Quit): This notice is served when the landlord wants to inform the tenant that the lease will not be renewed at the end of the current term.6
Step 2 – Wait to Hear from the Tenant
The landlord must now wait the appropriate number of days per the Notice to Quit to give the tenant an opportunity to respond, cure the breach or pay overdue rent. It is normally preferable to come to a compromise outside of court if possible.
Step 3 – File in Court
- Average Processing Time: one (1) to three (3) months
- Filing Fee: $45.00
- Landlord/Tenant Appeal: $60.00
- Service of Writ of Summary Possession: $407
- Where to File: the Justice of the Peace Court closest to the property location
If the tenant fails to comply and/or pay by the date established in the notice, the landlord can file for Summary Process proceedings. This includes submitting all required documents along with the filing fee.
The necessary filing documents include:
- Complaint (Form CF01): This states the relationship between the landlord and the tenant and describes why the summary process is taking place. This must first be filed with the court that will hear the case, and then served to the tenant.8
- Summons (Form CF01FS): This communicates that an action for summary possession has been filed against the tenant and is served to the tenant with the Complaint.9
- Copy of the Notice served on the tenant
Step 4 – Set A Hearing Date
The court will serve the paperwork on the tenant directly as well as set a trial date for both the landlord and tenant to appear.
Step 5 – Appear in Court
Both parties must appear in court on the established trial date to present their cases.
Some common tenant defenses include:
- The tenant can file an Answer to the landlord’s complaint and summons. This gives the tenant an opportunity to plead their case in writing prior to the trial date.10
- The tenant can keep two-thirds daily rent for any period when their utilities are not supplied, after first providing written notice to the landlord.8
- The tenant can seek double their security deposit if the landlord does not return it within twenty (20) days of termination of the rental agreement. If the tenant has incurred damage expenses, the landlord must provide an invoice listing all damage expenses along with the difference between the expenses and the full security deposit.8
- The tenant can file a counterclaim against the landlord if they feel the landlord has breached the agreement in any way. Generally, counterclaims must be filed at least five (5) business days before the trial.8
- A written request to appeal the decision must be made within five (5) days after the judgment of the Justice of the Peace Court in which the case was heard.8
Step 6 – File a Writ of Restitution
If the landlord wins the case but the tenant has not left the premises within ten (10) days of the final judgment, the landlord can file for a Writ of Possession. The writ gives the Sheriff permission to forcibly evict the tenant from the property.11
Step 7 – Repossessing the Property
Once a Writ of Possession is issued to the Sheriff, their office can legally forcibly remove the tenant from the premises to repossess the property.