Delaware Tenant Summary

Guide to Summary Possession Actions

This booklet explains the special procedures which apply in an action to obtain possession of a rental unit, known as an action for summary possession. A summary possession action should only be filed if possession alone is sought or if both possession and money are sought.

If only money is sought from the other party in a landlord-tenant case, a debt action should be filed and different procedures will apply. Before filing an action for summary possession, it is important that you decide whether you want to ask the Court to give you possession of the unit.

This booklet is intended to help only with Court procedures in summary possession actions. For further information on summary possession, and for information on the substantive rights and obligations of landlords and tenants, you should consult the Residential Landlord Tenant Code.

An option all parties should consider in any landlord-tenant dispute is mediation. It is free, and a quick way for the parties to reach a mutually acceptable result if they want to avoid litigation.

For information on mediation contact:

New Castle County: Delaware Center for Justice (658-7174)

Kent and Sussex Counties: Center for Community Justice (424-0890)

If you do decide to file a court action for possession of a rental unit, you should realize that summary possession cases may be complicated to present and parties are encouraged, though not required, to have an attorney represent them.

The Residential Landlord Tenant Code and the Mobile Homes Lots and Leases Act provide that landlords and tenants must do certain things and that if they do not, the other party has certain rights.

Examples include:

• A landlord has the obligation to supply hot water, heat, and electricity and a tenant may, if these are not supplied, seek to keep two-thirds of the daily rent for any period when these are not supplied.

• A tenant has the obligation to pay rent and a landlord has the right to charge a late payment when rent is not paid on time, to sue for back rent and/or to seek possession of the unit for unpaid rent.

• A tenant has the obligation not to damage the unit and the landlord has the obligation to return the security deposit or the difference between the security deposit and the amount set forth in a list of damages within 20 days of termination.

An action for summary possession may be filed by either a tenant who has been wrongfully put or kept out of his or her rental unit; by the next tenant of the premises whose term has begun and the former tenant refuses to leave; by a landlord; or by an owner.

Summary possession procedures apply to commercial, as well as to residential, rental agreements. Summary possession actions may also be brought to recover possession of mobile homes and mobile home lots.

Summary possession actions may not be brought for certain types of rental agreements, including some nonrenewable agreements, institutional or hotel-type lodgings, certain ground rentals, and some recreational camper or travel trailer arrangements.

Unless otherwise agreed in a written rental agreement, an action for summary possession may generally be brought for nonpayment of rent, violation of rules, expiration of the rental agreement, month-to-month termination, or other grounds listed by law.

Before filing, a landlord of a residential unit, or of a mobile home or mobile home lot, should notify the tenant in writing that the rental agreement is being terminated or, if for cause, will be terminated, if corrective action is not taken.

For failure to pay rent, a written demand for payment must be given or sent to the tenant before bringing an action for summary possession for failure to pay rent.

For violation of rules, advance written notice specifying the rule allegedly violated and providing an opportunity for the tenant to correct rule violations must generally be given or sent to the tenant before bringing a summary possession action.

Termination at expiration of rental agreement usually requires written notice at least 60 days before the end of the rental term. Termination of month-to-month rental agreements also requires at least 60 days written notice.

For all time periods mentioned in this booklet, the day of the event is not included, unless specifically stated. If the last day is a weekend or legal holiday, the time period runs until the next business day. If the period is less than 7 days, intermediate Saturdays, Sundays, and legal holidays are not included.

The action should be filed in the Justice of the Peace Court closest to the rental property. Filing consists of filling out and returning to the Court the necessary papers.

You will need to fill out a complaint form. If you are a corporation, partnership, or other artificial entity and do not wish to use an attorney, you will also need to file a Certificate of Representation.

The complaint must include the interests of the plaintiff and defendant, a statement of the facts, and a statement of what the plaintiff seeks in the action.

If you wish to have a jury trial, you must be sure to check the trial by jury box on the complaint.

Your action for possession will be scheduled for trial and the defendant will be served with the complaint and summoned to appear at trial.

If possible, the complaint and summons will be served by the constable handing these papers to the defendant.

If a landlord or tenant has substantial evidence that the other party is causing substantial or irreparable harm, the injured party may apply to the Court for a forthwith summons so that the case will be heard at an earlier date.

A defendant does not have to file any written answer in a summary possession case, but must appear in court at the time and place specified in the summons or the defendant will lose by default.

A defendant may file a counterclaim, and a third party action may also be filed at least 5 days before trial.

The booklet provides general information on preparing for trial and what you may expect at trial. Parties are encouraged to have an attorney represent them in court.

A few points to remember which are specific to Summary Possession cases are:

1. A copy of the rental agreement should be brought to court.

2. A landlord seeking possession should bring a copy of the notice of rental agreement termination which was given or sent to the tenant.

3. Any dates that may be important to your case should be noted for easy reference in court.

4. Tenants and landlords should review the applicable Code and rental agreement to determine whether there is anything the other party is required to do that has not been done.

5. Each party should think in advance about what they want and how they will explain and prove that to the judge at trial.

When the Court enters judgment in the case, the Court will order the losing party to pay the court costs of the suit. However, attorneys’ fees may not be awarded with regard to residential units in summary possession cases.

A party may file a motion to vacate a non-suit or default judgment, usually within 10 days of the entry of the judgment.

A written request to appeal the decision must be made within 5 days after the judgment of the Justice of the Peace Court in which your case was heard.

If the original trial was a jury trial, the special panel will review the record of the case and the person appealing the decision must specify the legal issues believed to have been decided incorrectly.

The fee for an appeal of a summary possession case is $50. In addition to the appeal fee, a cash bond may be required to prevent eviction from taking place during the appeal.

An application may be made to the Court for fees to be waived for persons the Court determines are unable to pay.

If the party in possession of the unit does not vacate it on his or her own, the plaintiff may ask the Court to issue a writ of possession.

If the defendant has appealed but has not filed a bond or assurances, the Court may issue the writ of possession upon the plaintiff’s request. If an eviction is ordered, the person(s) to be removed will be given at least 24 hours notice that they must vacate the premises.

If an evicted tenant leaves personal property on the premises, the landlord may remove and store such property at the evicted person’s expense.

If the landlord is awarded possession of a mobile home lot and the mobile home is not leased from the landlord, the Court may extend the time for removal from 24 hours to 7 days if the tenant prepays a storage fee.

If the tenant does not remove the mobile home during the required period, the landlord may remove the unit and store it before disposing of it through further legal action.

Complaint Facts

Relief Requested

Trial by Jury

Additional Notes