Delaware Landlord-Tenant Code

Outline by Edward A. Tarlov, Esquire

Email: etarlov@elzufon.com

I. Applicability of Delaware Landlord-Tenant Code – 25 Del.C. §5101 et. seq.

A. Residential “Rental Agreement” for a “Rental Unit” §5101(a) and §5141(21) and (22)

B. Total exclusion for institutions, fraternal organizations, hotels and non-renewable rental agreements of 120 days or less at certain beach locations – §5102

C. Land not covered Abramo v. Ploener, Del. Super., 394 A.2d 758 (1978) – §5102

D. Exclusion for commercial units – §5101(b).  Commercial units governed by contract law principals except actions for possession, distress for rent and matters involving utilities which are covered by Chap. 57 and 61.

E. Special provision for agricultural leases – §6701

F. Special provisions for mobile homes – §7001

G. Inconsistent provisions not enforceable – §5101

II. Significant Definitions

A. Landlord – §5141(13) – very broad language (owner, lessor, sub-lessor, property manager)

B. Rental Agreement – §5141(22) – includes all agreements, written and oral, which establish or modify the terms concerning the use and occupancy of a rental unit

III. Fair Housing Provisions

A. Broad anti-discrimination provisions including race, creed, religion, marital status, color, sex, national origin, disability, age, occupation, familial status (having a child or children), sexual orientation, gender identity – §5116

B. Landlord may rent solely to senior citizens (62+ regardless of spouse’s age) – §5116(d)

 IV.  Applications Fees   

A.  “Assurance money” prohibited – §5310.  Any payment to Landlord other than security deposit, application fee, pet deposit, for reserving the unit is prohibited.

B. Prohibited Fees – §5311.  Any non-refundable fee charged as a condition of occupancy.  Optional pool or tennis court fee is permitted.

C. Fee for credit check is application fee – §5514(d). Landlord may not charge more than the greater of 10% of monthly rent or $50.00 to determine a tenant’s credit worthiness.

V. Must a Rental Agreement be in Writing?

A. Rental Agreement shall include oral agreement – §5141(22)

B. Disclosure requirements if rental agreement not written (written statement of name and address of landlord.) – §5105

C. Oral rental agreement shall not be effective for longer than one year – §5106(a)

Tender of written rental agreement signed by only one party and part performance may become binding – §5110

VI. Term of Rental Agreement/Extensions/Rent Increases/Modifications

A. Unless otherwise provided, term is month to month – §5106(b)

B. Agreements for one year or more require a minimum of 60 days written notice by either party prior to expiration of term – §5106(c).  If no notice from Landlord, and Tenant does not give 45 days notice to terminate, term becomes month to month – §5108(a).

C. Month to Month – 60 days written notice by either party.  Sixty (60) days begins to run on first day of month following actual notice – §5106(d).

D. Rent and Security Deposit increases and modification of terms require a minimum of 60 days’ written notice – §5107(a).  If Tenant fails to reject new terms within 45 days of end of term, new terms accepted – §5107(b).  If Tenant rejects within 45 days of end of term, lease is terminated as of end of term – §5107(c).

VII. Special Tenant Termination Rights for Death, Illness or Job Transfer

A. Upon thirty-day written notice beginning on the first day of the month following the day of actual notice – §5314(b):

1. Change in location of tenant’s employment by tenant’s present employer requiring a change in location of residence in excess of thirty miles

2. Serious illness of the tenant or the death or serious illness of a member of his immediate family residing therein requiring a change in location of residence on a permanent basis

a. When tenant is accepted for admission to a senior citizens housing facility

b. When tenant is accepted into subsidized public or private housing

c. Person entering military service after signing rental agreement4

d. When tenant is a victim of domestic abuse, sexual offenses, stalking, or a tenant who has obtained or is seeking relief from domestic violence or abuse from any court, police agency, or domestic violence program or service

e. Surviving spouse or personal representative of estate of tenant upon death of tenant 

VIII. Sublease and Assignments

A. Not prohibited unless so provided in rental agreement – §5508(a)

B. Right to assign may be restricted in any manner but right to sublease may be conditioned on obtaining landlord’s consent, which shall not be unreasonably withheld – §5508(b).

IX. Access and Locks

A. Tenant shall not unreasonably withhold consent to landlord to enter unit to inspect, make necessary repairs, supply services or exhibit the unit – §5509(a)

B. Landlord shall give tenant at least forty eight hours notice of intent to enter except for repairs requested by tenant shall do so between 8:00 a.m. and 9:00 p.m.  Tenant may waive forty eight hour notice in lease (as to prospective tenants and purchasers w/ separate addendum). Landlord may enter at any time in case of emergency – §5509(b)

C. Tenant may install own lock at tenant’s own cost if tenant supplies landlord with a key, new lock fits system already in place lock installation does not cause damage to the door and gives written notice to landlord – §5509(a).

    1. Penalties for landlord abuse of access – §5510.  This section also allows landlord to obtain injunction against tenant unreasonably refusing access.
    2.  Locks must be changed after eviction if premises to be leased out – §5715(h)

X.  Security Deposit – §5

A. No more than one month’s rent for agreements for one year or more.  This limit does not apply to furnished rental units. 

B. Each security deposit must be kept in an escrow bank account in a federally-insured banking institution.  Landlord must advise Tenant of location of account.  Landlord entitled to interest.

C.Purpose – §5514(c):

    1. To reimburse landlord for actual damages which exceed normal wear and tear which cannot be corrected by painting and ordinary cleaning.
    2. To pay landlord for all rental arrearages due under the rental agreement, including late charges and rental due for premature termination or abandonment of the rental agreement by the tenant.
    3. To reimburse landlord for all reasonable expenses incurred in renovating and renting the premises caused by the premature termination of the rental agreement by the tenant, including permissible terminations under §5314

 D.  Procedures for return of security deposit

    1. Landlord to provide tenant with itemized list of damages and estimated cost of repair of each and to tender payment for difference within 20 days after termination/expiration.  Failure to do so will constitute an acknowledgement by the landlord that no payment for damages is due.  Acceptance of tendered deposit by tenant constitutes agreement on damages unless tenant objects in writing within 10 days of receipt – §5514(f).
    2.   Failure to remit the deposit within 20 days from expiration or termination of rental agreement shall entitle tenant to double the amount wrongfully withheld – §5514(g).
    3. Tenant must provide forwarding address.  Failure to provide relieves landlord of liability for double the deposit – §5514(h).
    4.  Tenant must make claim for security deposit within one year – §5514(h).

E. Pet Deposits

    1. Permissible, but may not exceed one month’s rent – §(5514(i). 
    2. Pet deposit is prohibited from a tenant that requires the pet as a result of tenant’s disability.
    3.  Increase in Security Deposit.
    4. Commensurate with rent increase.  Pro rate over term if in excess of 10% of monthly rent – §5514(j).

XI. Utility Charges – §531

A. No restriction against Landlord pass-through of utility charges to tenant when there is separate metering

B. Statutory procedure for pass through of utility costs to tenants when not separately metered 

XII. Landlord Obligations and Tenant Remedies

A. Prohibited language in rental agreement – §5301(a).Waiver of provisions of Code

    1. Waiver of provisions of Code
    2. Confession of judgment
    3. Indemnification or limitation of liability of landlord.

B. Landlord’s Obligations Relating To Rental Unit – §5305(c)

1. Landlord responsible for repairs and maintenance unless there is conspicuous writing separate from the rental agreement for the tenant to perform specified repairs and if such repairs:

a) Are for the primary benefit of the rental unit

b) The work is not necessary to bring a non-complying rental unit into compliance with the building or housing code, ordinance or the like

c) Adequate consideration, apart from any provision of the rental agreement, or reduction in rent is exchanged for the tenant’s promise; and

d) The agreement of the parties is entered into in good faith and is not for the purpose of evading an obligation of the landlord.

C. Landlord to place tenant in full possession and tenant’s remedies for  landlord’s failure to do so at beginning of term – §5302 and §5303

1. (§5304)  If Tenant not placed into possession on day one due to fault of Landlord:

a) Tenant may terminate upon written notice to Landlord;

b) Recover reasonable substitute housing expenses;

c) File eviction action against holdover Tenant(§5302)  Termination by Tenant during first month of term if Landlord is in substantial noncompliance:

2. (§5302)  Termination by Tenant during first month of term if Landlord is in substantial noncompliance:

D. Tenant may terminate upon written notice to Landlord.

    1. (§5302)  Termination by Tenant after first month:

 (a) First Six Months.  If Tenant remained in unit for a problem Landlord agreed to fix during the first month and same problem recurs during first six (6) months, Tenant can terminate upon fifteen (15) days written notice.

 E. Tenant’s Remedies Relating to the Rental Unit; Termination – §5306

    1. At any time during the term, if there exists a condition which deprives the tenant of a substantial part of the benefit or enjoyment of the tenant’s bargain, the tenant may notify the landlord in writing of the condition and if landlord does not remedy the condition within 15 days, tenant may terminate the rental agreement by filing an action with JP Court to terminate the lease.
    2.  If landlord acted willfully or negligently, tenant may receive: (1) one month’s rent plus security deposit; or (2) rent due minus expenses to find a new unit.

F .Tenant’s Remedies relating to Rental Unit; Repair and Deduction from Rent; Minor Repair – §5307

    1. Tenant may make minor repairs up to $200 or one-half of one month’s rent following 30 days’ written notice to landlord or failure of landlord to initiate corrective measures including obtaining an estimate within 10 days after notice.  Tenant may deduct cost of repair up to $200 or one half month’s rent, whichever is less.

G. Essential Services; Landlord Obligation and Tenant Remedies – §5308

    1. If landlord fails to provide hot water, heat, water, electricity or fails to remedy any condition which materially deprives tenant of a substantial part of the benefit of the tenant’s bargain in violation of the rental agreement or applicable housing code, tenant may terminate upon written notice to landlord after failure continues for 48 hours or withhold 2/3 per diem rent or if substitute housing not supplied by Landlord:
    2. If Tenant remains in unit after giving written notice and Landlord fails to provide services:
    3. Leave and upon written notice, immediately terminate the rental agreement;
      1. Upon notice, procure equivalent substitute housing for as long as heat, water, hot water or electricity is not supplied and the landlord is liable for up to one-half of abated rent;
      2.   Upon written notice to landlord, tenant can withhold two-thirds per diem rent.
    4. Fire or other catastrophe (§5309)
      1. If, without the fault of the Tenant, the premises are rendered unusable by fire or other extreme damage, the Tenant may:
      2. Immediately leave the unit and notify the Landlord in writing that the Tenant has left.  This notice will terminate the rental agreement as of the date the Tenant leaves the unit; or
      3. If the Tenant can still use part of the property, then the rent must be reduced in proportion to the reduction of the fair market rent for the unit.

 

H. If the Tenant terminates, the Landlord must return any security deposit or pet deposit and any prepaid rent that the Landlord is not entitled to keep.

    1. Wrongfully withholding of rent entitles landlord to double damages plus costs in action for possession

XIII.    Tenant’s Responsibilities and Landlord’s Remedies – §5501 and §5502

A. Tenant must pay rent

    1. Rent as set forth in rental agreement or reasonable amount
    2. Late charge not exceeding 5% of monthly rent and cannot be imposed until a minimum of five days after rent is due.  If landlord’s rental office is not in county where unit is located, three-day grace period.  Late charge is considered additional rent.
    3. Penalty for non-payment of rent:  Any time after rent is due, landlord may demand payment and notify tenant in writing that unless payment is made within a time mentioned in such notice, not less than five days after date notice was given or sent, the rental agreement will be terminated.  If the tenant remains in default, the landlord may thereafter being an action for summary possession.  Landlord may bring action for rent alone.  If tenant pays rent before action for possession and landlord accepts same without written reservation of rights then action for rent or possession is barred.   If tenant pays rent after rent action commenced, rent action is barred where landlord accepted rent without written reservation of rights.

B.Tenant Obligations Relating To Rental Unit; Waste – §5503

C.Rules and Regulations; Tenant Obligation – §5511

1. Tenant must abide by rules, regulations and restrictions.

a) To be enforceable, rules must be brought to attention of tenant at time of entry into rental agreement or afterwards if they do not work a substantial modification of lease.  If rules are brought to attention of tenant after lease is signed and they substantially modify lease, the tenant must consent in writing to be enforceable.

b) Rules must promote the health convenience, safety, quiet and private enjoyment or welfare, place and order of tenants of the property and promote fair distribution of services for all tenants.

c) Rules must be reasonably related to purpose for which they are promulgated.Rules must apply to all tenants in a fair manner.

d)  Rules must be sufficiently explicit and fairly inform tenant.

e)Landlord Remedies Relating To Breach Of Rules and Covenants – §551

f) Penalty for failure to follow rules:  If tenant breaches any rule or covenant which is material to the rental agreement, the landlord shall notify the tenant of the breach in writing and must allow seven days for correction.  Notice shall substantially specify the rule allegedly breached and advise the tenant that if violation continues after 7 days, the landlord may terminate the rental agreement and bring an action for summary possession.  If tenant commits substantially similar breach within one year after receipt of last notice, landlord may proceed with summary possession and rely on first notice.

g) When tenant’s breach or conviction of class A misdemeanor or felony causes or threatens to cause irreparable harm, landlord may:  (1) remedy breach and bill tenant; (2) immediately terminate with notice and bring summary possession action; or (3) do both.

 

D.   Termination upon notice of material violation of regulation given to tenant at time of rental agreement for rental of single room in building which is primary residence of landlord and contains no more than 3 rental rooms and no more than 3 tenants – §5512.

E. Landlord’s Remedies Relating To Holdover Tenants – §5515

    1.  Hold-over tenant is a tenant who fails to leave at expiration of term.  Hold-over tenant shall pay to landlord a sum not to exceed double the monthly rent under the previous agreement.

F. Notice of Absence

    1. Landlord may require tenant to notify landlord of extended absence (more than 7 days).

G Landlord Remedies for Abandonment – §5507

    1. Landlord may seek all remedies available under breach of rules sections – §5511 and §5513 – for wrongful use of the unit.

H. Abandonment damages to Landlord.

    1. File action for summary possession and tenant liable for:  (1) rent for remainder of term plus expenses for damages caused by tenant; or (2) fair rental value not paid  before  re-rented  plus  expenses  to  re-rent and repair damages plus commission payable to re-rent.  Landlord has duty to mitigate damages.

I. If no appeal filed from action for summary possession, landlord may immediately store and remove tenant’s items, at tenant’s expense.  Seven (7) days after appeal time has expired, the property is deemed abandoned and landlord may dispose of the property.

XIV. Retaliatory Eviction; Retaliatory Rent Increases and Decrease In Services Prohibited – §5516

XV. Remedies and Court Proceedings

A. Distress for rent – §6301

1) Abolished except pursuant to rental agreement for a commercial unit

2) Justices of the Peace Court shall have original jurisdiction

B. Suits for money damages

1)  May be brought in any court (§5117) including Justice of the Peace Court.  J.P. Court has jurisdiction up to $15,000.00.  Appeals from J.P. Court are to Court of Common Pleas for trial de novo (10 Del. C. §9571).

2)  May be combined with suits for possession

C)  Summary actions for possession

a) Exclusive jurisdiction in Justice of the Peace Court without appeal to Superior or Supreme Court.  Bomba’s Restaurant and Cocktail Lounge, Inc. v. Lord DeLaWarr Hotel, Inc., Del. Supr., 389 A.2d 766(1978).  This includes residential and commercial leases – §5701

b)    Must be maintained in the Justice of the Peace Court which is closest to the premises and the same county – §5701

c) Either party may demand trial by jury – §5713(a)

d) Appeal from non-jury trial is de novo before a special court comprised of three Justices of the Peace §5715(a).  Appeals may include claims and counter-claims not raised in initial proceeding with filing of Bill of Particulars. 

e) Appeal from jury trial is review on the record by an appellate court comprised of three Justices of the Peace – §5717(c).

f) Action may be maintained by landlord, owner, excluded tenant or next tenant due right of possession  – §5703.

g) Contents of complaints – §5707 and §5708.

h) Stay upon payment of rent and costs or posting bond if good faith dispute – §5716.  However, if tenant proceeding in forma pauperis Court may waive appeal fee and bond or request for stay of writ of possession – §5718

i) Unlawful ouster may require payment of treble damages or three times per diem rent for period of ouster plus costs, whichever is greater – §5313.

j) Waiver of fees and costs upon application of party claiming to be indigent (Proceedings in forma pauperis) – §5718

XVI. Fire or Casualty Damage – §5309

A. Where fire substantially impairs enjoyment of unit without fault of the tenant, the tenant may immediately quit the premises and promptly notify landlord in writing of his election to quit within one week after vacating or tenant may vacate the portion of the premises rendered unusable by fire or casualty, in which case the tenant’s liability for rent shall be prorated to diminution of fair rental value.  Landlord shall timely return security deposit except portion landlord entitled under the code (5309(b)). 

XVII.   “Special” Provisions and Prohibitions

A. No provision in a rental agreement providing for the recovery of attorney’s fees by either party in any suit, action or proceeding arising from the tenancy shall be enforceable – §5111.

B. Service of notice – §5113

(1)   Personally upon tenant by leaving a copy at rental unit or usual place of abode with an adult person residing therein (5113(a)).  Upon landlord by leaving copy at landlord’s address as set forth on lease with adult person residing therein.In lieu of personal service, by registered or certified mail or first-class mail, postage prepaid, addressed to the tenant at the leased premises or to the landlord at an address set forth in lease.  If landlord is entity, then at office or place of business.  The return receipt of notice, whether signed, refused or unclaimed if sent registered or certified or certificate of mailing if sent by first class mail considered prima facie evidence of service.

(2)  Alternative Service

(a)  Posting of notice on rental unit (coupled with a required mailing

(b)  Personal service by Court appointed process service. 

(3)   Application for Forthwith Summons – §5115

(a)  Expedited process where landlord or tenant’s person or property has been substantially or irreparably harmed.

C.Tenant’s responsibility to report defects needing repair – §5505

D. Mutual promises, agreements, covenants and understanding in rental agreement mutual and dependent – §5109

 E.Landlord-Tenant Code Summary must be given to tenant at beginning of term.  Failure to do so, allows tenant to plead ignorance of the law as a defense – §5118

 

 

 

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