When you can send the Delaware rent demand
Timing matters more in Delaware than in most states. Under 25 Del. C. 5502(a), the demand can go out only after the window between the due date and the date a late fee may be charged. Section 5501(d) bars late fees within 5 days of the due date and adds 3 more days if you don’t keep an office or other permanent place in the county where tenants can pay.
The demand must tell the tenant that unless payment is made within the time stated, at least 7 days after the notice is given or sent, you may file to terminate the rental agreement. Any earlier demand is premature.
Payment rules that end your case
Three rules let a tenant end a nonpayment case. If the tenant, or anyone on the tenant’s behalf, pays all rent due before you file, you can’t file on that default under 5502(c). If the tenant pays all rent due under the lease after you file, you can’t maintain the action under 5502(d).
After judgment, the redemption right in 5716A applies: the tenant can tender all past-due amounts set by the court, including rent then due under the lease and court-awarded costs and fees, at any time before the eviction is actually executed. You must notify the court and the constable or sheriff right away, the court stays the writ and then vacates the judgment.
You can’t refuse payment, but you can limit methods to those in the lease before judgment and demand a certified check or money order after it. A tenant with two nonpayment judgments of possession in the 18 months before the case can’t redeem, and a redeemed judgment still counts toward that limit.
Lease violations and dangerous conduct
For a material rule or lease breach other than rent, 5513(a) requires written notice allowing at least 7 days to cure. The notice must name the rule, say it is given under 5513 and warn that a substantially similar breach within one year lets you file without a new cure period.
When a breach causes or threatens irreparable harm to a person or property, or the tenant is convicted of a class A misdemeanor or felony during the tenancy that caused or threatened that harm, 5513(b) lets you terminate immediately on notice and file. Those cases also skip the mediation program. For no-fault endings, the 60-day notice rules are in our Delaware landlord-tenant law guide.
Filing in the Justice of the Peace Court
File a complaint for summary possession in the Justice of the Peace Court that hears civil cases for the area where the building is, under 5701 and 5701A. The complaint must describe the unit, state the facts and attach a copy of the written notice under 5707. A lease-violation case must also quote the rule, show when the tenant learned of it and describe the continued breach under 5708.
You must also file documentation that the unit complies with Delaware’s lead-based paint chapter under 5704A, unless the case is about a tenant refusing access for that work. You can claim rent along with possession if the notice says so conspicuously.
Service and the hearing window
The notice of hearing and complaint must be served at least 5 and no more than 30 days before the hearing under 5705. Service is personal first, then by leaving papers with a resident of suitable age, then by posting on the unit plus first-class mail with a certificate of mailing or certified mail under 5706.
Posting and first-class mail with a certificate of mailing count as actual notice for a default judgment under 5712(a). A party who loses by default can move to vacate within 10 days under 5712(b).
Mediation before trial
Most residential cases now go through the Justice of the Peace Court’s eviction diversion program under 5702A. Mediation is scheduled between filing and trial and must be finished at least 48 hours before trial, with a HUD-certified housing counselor or approved representative working with the tenant.
Trial can’t start until you have taken part, unless the tenant fails to engage within 15 calendar days of service, and a tenant’s failure to show up can’t delay trial. Cases under 5513(b), or where you show by substantial evidence that the tenant threatens substantial or irreparable harm, are exempt.
Trial, jury demands and appeals
The tenant can answer orally or in writing at the hearing under 5709. Adjournments are capped at 10 days without everyone’s consent under 5710. You can demand a jury when you file, and the tenant within 10 days of service, under 5713, and a six-person panel then hears the case.
Either side can ask for a new trial before a panel of three justices within 5 days after a nonjury judgment, and the panel decides within 15 days of the request under 5717. A tenant who wants to stay in place pending that review must post an undertaking covering costs and rent that accrues. The court won’t issue the writ during the 5-day window.
The writ of possession
After the appeal period, the court issues a writ to the constable or county sheriff under 5715. The officer gives at least 24 hours’ notice and executes it between sunrise and sunset. You must notify the constable to complete the lockout, and you have to change the locks before re-renting or you’re liable to the next tenant for harm caused by an old key.
Belongings left behind may be removed and stored at the tenant’s expense for 7 days, then treated as abandoned. If an appeal is pending, storage runs until 7 days after it is decided.
Ouster, retaliation and holdover rent
A lockout without a court order lets the tenant recover possession or end the lease, plus the greater of treble damages or three times the per diem rent for each day of exclusion, under 5313. Retaliation is barred by 5516, and filing within 90 days of a code complaint or similar protected act is presumed retaliatory, with damages of three months’ rent or treble damages.
On the landlord’s side, a tenant who holds over after a lawful termination owes up to double the monthly rent, prorated daily, under 5515.
CARES Act notice and the SCRA
If the building has a federally backed mortgage or takes part in a covered federal program, 15 U.S.C. 9058(c) says a tenant can’t be required to vacate until 30 days after notice. The statute’s 120-day moratorium ended in 2020, but courts still disagree on the 30-day piece, so give 30 days at a covered property. File a military status affidavit before any default, as 50 U.S.C. 3931 requires.
Delaware eviction timeline
Statutory minimums for a nonpayment case. Court calendars and mediation scheduling decide the actual dates.
| Step | Deadline | Rule |
|---|---|---|
| Earliest rent demand | After day 5 past due, or day 8 with no county payment office | 25 Del. C. 5501(d), 5502(a) |
| Pay-or-file demand | At least 7 days | 5502(a) |
| Service of complaint and hearing notice | 5 to 30 days before hearing | 5705(a) |
| Mediation | Completed 48 hours before trial | 5702A(c) |
| Tenant jury demand | Within 10 days of service | 5713(a) |
| Motion to vacate default | Within 10 days | 5712(b) |
| Request for three-justice review | Within 5 days of judgment; decided within 15 days | 5717(a) |
| Constable notice before lockout | At least 24 hours, sunrise to sunset | 5715(b) |
| Tenant redemption | Any time before execution | 5716A(b) |
| Storage of belongings | 7 days, then abandoned | 5715(e) |
Worked example: a minimum Delaware nonpayment case
Assume a one-bedroom renting for $1,600 a month in a 12-unit Wilmington building with an on-site rent office, and an assumed $1,200 in attorney fees. Rent is due on day 0, the demand goes out on day 6, and the 7 days run through day 13. You file on day 14 and serve the same day.
Assume the tenant never engages in mediation, so trial is held on day 29, 15 days after service. The 5-day appeal window ends on day 34, the writ issues on day 35, and after 24 hours’ notice the constable returns the unit on day 36.
At $52.60 a day, 36 days cost $1,893.70 in rent, or $3,093.70 with the attorney estimate. Without a payment office in the county, the demand waits 3 more days, which pushes the floor to 39 days and $3,251.51. Remember that the tenant can redeem at any point and wipe out the judgment.
| Scenario | Days to possession | Lost rent | With attorney |
|---|---|---|---|
| Payment office in county | 36 | $1,893.70 | $3,093.70 |
| No payment office in county | 39 | $2,051.51 | $3,251.51 |
Payment plans and cash for keys
Because Delaware lets tenants pay their way out of a nonpayment case at almost every stage, a written payment plan reached in mediation often gets you paid sooner than a judgment. When the relationship is over, cash for keys works well: a signed agreement with a move-out date, a payment released when the keys come back and a release of claims both ways.
Selling a Delaware building with an eviction in progress
You can sell while a summary possession case is pending. The buyer takes subject to the leases, so the contract should say who continues the case, who pays counsel and who keeps any rent judgment. Give the buyer the demand, the complaint, the mediation outcome, the lease and deposit records and tenant estoppels for the other units.
Selling your Delaware apartment building to Skyline
Skyline Capital Investments buys apartment buildings with five or more units throughout Delaware, including occupied buildings with nonpaying tenants or cases in the Justice of the Peace Court. Send the address and unit count using the form on this page or call (469) 660-2977, and we typically respond within 48 hours.
