Delaware's Landlord/Tenant Code spells out the rules for evicting a tenant. A landlord can't take matters into his own hands to remove a tenant. Instead, he has to go to court and file a lawsuit for summary possession.
Non-Payment of Rent
A classic reason for evicting a tenant is that she didn't pay her rent. The Delaware Attorney General's office says under the Landlord/Tenant Code, rent is normally due at the start of the rental period. If the tenant is late, the landlord can send her a notice telling her to pay within five days or her lease will be terminated. If the tenant pays up, she gets to stay. Otherwise, the landlord can take her to court.
If the tenant violates the lease or rental agreement or damages the rental property, the landlord must first send her a notice requesting she fix the problem within seven days. The landlord can begin the eviction process if the tenant fails to do so. The landlord can go ahead and file for summary possession without asking the tenant to resolve the issue if this is the second similar problem within a year's time. The landlord can also choose to sue the tenant for the cost to fix the rental, rather than evict her.
Other circumstances allow the landlord to file for summary possession without giving the tenant a chance to make things right:
•The tenant violated the terms of the lease and she lives in a single room in the landlord's home.
•The tenant broke state or local law.
•The tenant moved out, unless the lease makes provision for his absence.
If the landlord simply wants to end the rental agreement when the month or year is up, she must give the tenant 60 days advance notice in writing.
If the tenant stays in the rental after the landlord terminates the lease, the landlord can sue for double the monthly rent, pro-rated for each day the tenant stays there.
Filing a Summary Possession Action
The Delaware State Courts website says a landlord must file his case paperwork with the justice of the peace closest to the rental property. The paperwork includes the grounds for evicting the tenant. The court will schedule a hearing and notify both parties of the date after it receives the paperwork.
The defendant doesn't have to answer the lawsuit, but if she doesn't attend the hearing, she automatically loses. She can also lose by default if the landlord sues for money but she fails to return a written response to the court. If she attends the hearing, she can present evidence and counter-arguments to the landlord's case.
The loser in the case may be able to file an appeal. Otherwise, the landlord can ask the court to issue a writ of possession authorizing the local constable to remove the tenant from the rental unit. The court won't issue the writ until 10 days after delivering judgment in the summary possession case.
A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.