Delaware Landlord Tenant Law

Looking for clear and concise information on Delaware landlord tenant law? Get all your answers from this plain English guide to the Delaware Landlord Tenant Code.

DE Landlord Tenant Law:

  • Delaware Code Title 25, Part III - Residential Landlord Tenant Code

Tenant Application

Application Fees

The landlord can ask prospective tenants for application fees to cover the costs of background and credit checks. The fee amount should be reasonable.

The landlord can charge an application fee of up to 10% of the monthly rent or $50 (whichever is higher).

Upon receiving any payment for the application fee, the landlord has to give the prospective tenant a receipt and maintain records of all fees charged for at least two years.

If the landlord demands more than the allowed amount, the tenant may sue the landlord for up to twice the amount of application fees.  Del. Code tit. 25, § 5514.(d)

If the landlord did not run any tenant screening checks, he or she has to return the fees to the tenant.

Background and Credit Check

You can screen tenant applicants with a background check or full credit report from RentPrep.

A background check will show a person's history of addresses, evictions, bankruptcies, judgments and liens.

A full credit report comes with a basic background check, credit check plus criminal check. A basic background check shows a person's history of addresses, evictions and bankruptcies.

Landlords do not need the tenant or applicant's consent to run background and credit checks.  Fair Credit Reporting Act § 604(a)(3)(F)

Avoiding Discrimination

The Fair Housing Act disallows landlords from discriminating against prospective renters based on their race, color, religion, sex, *familial status, national origin or physical/mental handicap.  42 U.S.C. § 3604

*Familial status - pregnant women and families with person(s) under 18.

In addition, Delaware landlord tenant law disallows landlords from discriminating someone as a renter because of his or her age, marital status, sexual orientation, gender identity, source of income, or occupation.  Del. Code tit. 25, § 5116

However if the dwelling has four or less rental units and the landlord lives in one of them, then he or she won't have to follow the above Fair Housing laws.  42 U.S.C. § 3603(b)

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Tenancy Agreement

(also known as a lease agreement or rental agreement)

Whether you're a landlord or tenant, it's important to have a written lease agreement with terms and conditions that favors you and follows your state laws.

To save time and avoid mistakes, you can customize your own lease agreement at LawDepot. This site will ask you a set of questions related to your tenancy and create a state-specific agreement based on your answers.

If you are renting the property for one year or less, your tenancy agreement can be verbal or written. If you are renting for more than one year, your lease agreement must be in writing.

The tenancy will be month-to-month by default unless a duration is stated in the rental agreement.  Del. Code tit. 25, § 5106.(a),(b)

Difference between a month to month versus fixed term tenancy in DE landlord tenant law:

Raising Rent or Changing Tenancy Terms: If the landlord wants to raise rent or change the terms and conditions of the rental agreement, he or she has to inform the tenant 60 days before the rental agreement expires. Then tenant will have 15 days (after notice has been given) to either renew the agreement with the new terms OR end the tenancy after the 60 day period.  Del. Code tit. 25, § 5107.(a),(b),(c)

Renewing Tenancy: Whenever a rental agreement that is longer than than one year is about to expire, the landlord and tenant should give *adequate notice to renew the lease. Otherwise the lease shall be automatically renewed as a month-to-month tenancy with same lease terms and conditions as before. This Delaware landlord tenant law does not apply to farm units. *Adequate notice refers to 60 days for the landlord and 45 days for the tenant.  Del. Code tit. 25, § 5108.(a)

Required for Tenancy Agreement

Delaware landlord tenant law Del. Code tit. 25, § 5105 requires all tenancy agreements to contain the following details:

  • Name and address of person authorized to manage the property
  • Name and address of property owner or owner's agent

What Landlords Must Disclose

  • Lead Paint: If the property was built before 1978, the landlord must inform the tenant if the property contains lead-based paint (before signing the rental agreement).
  • Copy of Rental Agreement: If the tenant asks for a copy of the rental agreement, the landlord must give the tenant a free copy in writing (even if the agreement is verbal)

Recommended for Tenancy Agreement

  • Name and address of tenant(s)
  • Number of people (occupants) staying on the property
  • Type of tenancy: month to month tenancy or fixed term lease
  • How much is the rent
  • When, how and where the rent is to be paid
  • When is rent is considered late and the penalties for late rent payment
  • How much is the security deposit and pet deposit (if any)
  • Who holds the deposit(s) and where will it be held
  • What utilities and services are provided and who pays for them
  • What are the landlord's and tenant's duties for property maintenance
  • Can the tenant sublet the property or assign the lease
  • When to inform the landlord if tenant will be away for a long time
  • Prohibited activities and items

Disallowed for Tenancy Agreement

According to Delaware landlord tenant law Del. Code tit. 25, § 5301.(a), your lease agreement CANNOT:

  • make the landlord or tenant give up any legal rights or remedies under the Delaware Landlord Tenant Act
  • allow the landlord to get a confession of judgment against the tenant
  • limit the landlord or tenant's liability when they have failed in their duties

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Security Deposit

If the tenancy has been going on for one year or more, the landlord can ask for a maximum of one month's rent as security deposit. Del. Code tit. 25 § 5514.(a)(2) For furnished rental units, there is no maximum limit to the amount of security deposit that a landlord can ask for.  Del. Code tit. 25 § 5514.(a)(4)

Tenancy Has Gone On For

Maximum Security Deposit

Less than one year - Unfurnished Unit

No limit

One year or more - Unfurnished Unit

One month's rent

Less than one year - Furnished Unit

No limit

One year or more - Furnished Unit

No limit

Once the tenancy has reached the one year mark, the landlord will be only allowed to hold a maximum of one month's rent as security deposit and has to return any excess amount to the tenant. Example: If the landlord asked for two month's rent (as security deposit) at the start of the lease, he or she has to return one month's rent to the tenant after one year has passed.  Del. Code tit. 25 § 5514.(a)(3)

Delaware landlord tenant law requires the landlord to hold the security deposit in an escrow bank account in a federally-insured financial institution AND inform the tenant of the account's location. This institution must have an office that accepts deposits within the US. The landlord cannot use this account for other business purposes.  Del. Code tit. 25 § 5514.(b)

If the tenant keeps a pet (that is not a *service animal), the landlord can ask for an additional pet deposit. The maximum amount for this pet deposit is one month's rent and it can only be deducted for pet-related damages. *A service animal is an animal (usually a dog) that is trained to assist disabled people.  Del. Code tit. 25 § 5514.(i)

If the lease agreement allows it, the landlord can ask for additional security deposit when there is a rent increase. This additional deposit has to be proportionate to the amount of rent increase.  Del. Code tit. 25 § 5514.(j)

Deductions and Returns

Delaware landlord tenant law requires the landlord to inform the tenant of the terms and conditions for security deposit deductions.

Valid reasons for security deposit deductions under Delaware landlord tenant law Del. Code tit. 25 § 5514.(c) include:

  • Rent owed
  • Property damage due to negligence, misuse or abuse by tenant, occupants or tenant's guests
  • Costs and losses incurred by landlord due to the tenant failing in his or her duties - See Tenant Duties and Responsibilities below  Del. Code tit. 25 § 5304

The landlord is NOT allowed to take money from the security deposit due to damage from *normal wear and tear. *Normal wear and tear is the natural deterioration of the property (and its contents) from normal everyday use.

Once the lease terminates and the tenant returns the property, the landlord must send the tenant a list of security deposit deductions and refund any remaining deposit within 20 days. This list has to individually account for all damages and rent owed in writing.  Del. Code tit. 25 § 5514.(e)

Even if the landlord isn't making any deposit deductions, he or she still has to let the tenant know. If the tenant does not agree with the damages and deductions provided in the itemized list, the tenant has 10 days (after receiving the itemized list) to provide a written objection to the landlord.  Del. Code tit. 25 § 5514.(f)

If the landlord fails to disclose the location of the deposit within 20 days of a tenant's written request, the tenant can recover up to two times the amount of security deposit.  Del. Code tit. 25 § 5514.(g)

If the landlord fails to follow Delaware landlord tenant law for deducting and returning security deposit, the tenant may recover up to double the amount wrongfully withheld.

If Property is Sold

Once the property ownership is transferred, the new owner will be responsible for refunding any security deposit or prepaid rent to the tenant (at the end of the tenancy). Therefore the new owner should make sure that the previous owner transfers all security deposits and prepaid rents along with the property.

The previous owner is no longer responsible for the tenancy once ALL three conditions are met:

  1. The previous owner makes a proper transfer of all security deposits and prepaid rents to the new owner
  2. The previous owner informs the tenant in writing that the property is being sold
  3. The new owner and tenant enters into a new agreement on the condition and contents of the property

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Wilmington, Delaware DE

Delaware Landlord Tenant Law

Rent

Delaware landlord tenant law requires the tenant to pay rent without demand or reminders. As long as the landlord and tenant are agreeable, they can choose the time, place and method of rent payment.

By default, the entire rent is payable once the tenancy begins and shall be paid on the same day at the beginning of any term that is one month or less. For a rental term more than one month, one month's rent shall be paid at the beginning of the month.  Del. Code tit. 25 § 5501.(b)

If the landlord accepts cash as method for paying rent, the landlord has to provide a receipt for the rent payment to the tenant within 15 days of payment. The landlord must also maintain record of receipts for cash payments for a period of three years.  Del. Code tit. 25 § 5501.(e)

Late Rent

If the landlord wants to impose late rent fees, it has to be specified in the tenancy agreement.

If the rental agreement allows a late fee, the amount cannot exceed 5% monthly rent. A late charge is considered as an additional rent payment.

The landlord can only charge late fees if the tenant is at least five days late in paying rent. If the landlord does not have an office or permanent place where tenant can pay his or her rent, this grace period will be increased to eight days.  Del. Code tit. 25 § 5501.(d)

Raising Rent

According to the Delaware Landlord Tenant Act, the landlord can choose to raise the rent by any amount.

The landlord has to notify the tenant of a rent increase or change in lease terms at least 60 days in advance. The tenant can choose to pay the higher rent or move out. If the tenant chooses to leave, he or she must respond to the landlord within 15 days by giving written notice to terminate tenancy at the end of 60 days. Otherwise it is assumed that the tenant has accepted the new terms.  Del. Code tit. 25 § 5107

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Property Maintenance

Landlord Duties and Responsibilities

The Delaware Landlord Tenant Act Del. Code tit. 25 § 5304.(a),(b) requires the landlord to maintain the property in a safe and habitable condition:

  • Compliance: Follow all applicable housing and safety codes imposed on landlords by the state
  • Common Areas: Keep all common areas clean and safe
  • Repairs: Make all repairs to keep the property safe and habitable
  • Maintenance: Maintain all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, kitchen facilities in safe working condition before the tenancy begins

If it is stated in the rental agreement, the landlord shall also be responsible for:

  • Heating: Supply running water, hot water and heating (as far as conditions allow)
  • Waste Disposal: Provide outlets for waste disposal and arrange for waste removal

Tenant Duties and Responsibilities

Delaware landlord tenant law Del. Code tit. 25 § 5503 also requires the tenant to keep the property in a clean and safe condition:

  • Compliance: Follow all applicable housing and safety codes imposed on tenants by the state
  • Common Areas: Keep all common areas clean and safe
  • Waste Disposal: Dispose all waste from the property in a clean and safe manner
  • Cleanliness: Keep the property and plumbing fixtures clean and safe (as far as conditions will allow)
  • Proper Usage: Use all facilities and appliances properly. This includes all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, kitchen and common area facilities (e.g. elevators)
  • Property Damage: Avoid property damage due to negligence, misuse or abuse by the tenant, occupants or tenant's guests
  • Smoke Detectors: Avoid removing or tampering with smoke detectors and carbon monoxide detectors that are functioning.
  • Neighbors: Avoid disturbing neighbors and also disallow others from disturbing neighbors

If Landlord Fails to Maintain Property

If the landlord fails to maintain the property, the tenant should inform the landlord in writing to correct the problem within 30 days.  Del. Code tit. 25 § 5307

If landlord fails to obtain the costs of fixing the problem within 10 days (of receiving notice), the tenant may proceed to make repairs in a professional manner and submit copies of the repair receipts to the landlord.

After the repairs are done, the tenant may deduct up to $200 of repair costs from his or her rent payments. If the monthly rent is less than $400, the tenant can only deduct up to half of the monthly rent.

If Landlord Fails to Provide Essential Services

If the landlord fails to provide an essential service (such as heat, water, electricity, plumbing or sanitation) for at least 48 hours, the tenant must inform the landlord in writing about the problem and do the ONE of the following:

1. The tenant can move out and terminate the rental agreement immediately.

2. The tenant can stay and pay reduced rent (1/3 of full rent) during the period that an essential service isn't provided UNLESS the landlord is able to provide substitute housing.

3. The tenant can find substitute housing for the period that an essential service isn't provided. During this period, the tenant shall pay reduced rent (1/3 of full rent) and the landlord shall pay for any additional expenses incurred by the tenant (up to 1/6 of full rent).  Del. Code tit. 25 § 5308

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Property Access

When Tenant's Permission is Required

According to Delaware landlord tenant law Del. Code tit. 25 § 5509.(a), the landlord is only allowed to enter the property for the following reasons:

  • Performing property maintenance or repairs
  • Supplying essential (or mutually agreed) services and utilities
  • Obtaining readings for utility consumption
  • Inspecting property for damages
  • Showing property to prospective buyers, tenants or contractors
  • Court order granting landlord access to the property

In the above situations, the landlord must inform the tenant at least 48 hours in advance before entering the property. The landlord can only enter the property with the tenant's consent between 8 AM to 9 PM.

If the landlord wishes to show the property to prospective tenants or buyers without informing the tenant in advance, this condition has to be included in the rental agreement.  Del. Code tit. 25 § 5509.(b)

When Tenant's Permission is NOT Required

According to Delaware landlord tenant law, the landlord may enter the property without permission in the following situations:

  • Emergencies such as smoke, fire, flooding or explosion  Del. Code tit. 25 § 5509.(b)

If the tenant is away from the property for an extended period, the landlord may enter the property for inspection, maintenance and safekeeping purposes.  Del. Code tit. 25 § 5507.(b)

If Tenant Refuses Landlord's Valid Request to Enter Property

The tenant cannot deny access if the landlord has a valid reason to enter the property. Otherwise the landlord can obtain a court order that grants the landlord access or the right to terminate the rental agreement.

The tenant will also be liable (to the landlord) for any harm resulting from him or her denying property access.

If Landlord Enters Property Illegally

If the landlord enters the property illegally, the tenant may obtain a court order that either prevents the landlord from entering OR terminates the rental agreement.  Del. Code tit. 25 Sec. 5510.(c)

The landlord shall be responsible for any theft, accident or harm resulting from his or her illegal entry in the following situations:

  • Tenant is absent and did not give the landlord permission to enter the property
  • Tenant is present but has not given the landlord permission to enter the property
  • Tenant suffered harm due to the landlord's negligence

Tenant Changing Locks

Delaware landlord tenant law Del. Code tit. 25 § 5509.(b) allows the tenant to change the locks at his or her own expense if the all three conditions are met:

  1. The tenant informs the landlord that he or she is changing the locks and supplies a set of the new keys to the landlord.
  2. The new lock fits into the original locking system.
  3. The installation of the lock does not damage the door.

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Subletting

Delaware landlord tenant law allows the tenant to sublet unless the landlord disagrees to it in writing.

The landlord may choose to allow or prohibit the tenant to assign or sublease the premises by stating it in the rental agreement.

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Dover, Delaware DE

Dover, Delaware DE

Termination of Tenancy

Number of Days for Notice to Quit

Delaware landlord tenant law requires you to give the other party a written notice to quit before terminating a tenancy.

To terminate a month to month tenancy or fixed term lease, you will have to give the other party a written 60 day notice to quit.  Del. Code tit. 25, § 5106.(c),(d)

TENANT

If you are the tenant, the following are the minimum number of days for giving your landlord a notice to quit:

Landlord raised rent (for week-to-week or month-to-month tenancy)

15 days

Landlord violated tenancy agreement

7 days

Landlord entered property illegally

Not specified

Tenant is a victim of domestic violence

30 days

Property damage due to fire, disaster or unavoidable accident

7 days

Tenant is a Victim of Domestic Violence

If the tenant is a victim of domestic violence, he or she may terminate the rental agreement early without penalties by submitting the following documents to the landlord:

  • Notice to release tenant from rental agreement within 30 days  Del. Code tit. 25 § 5314.(b)(6)
  • Copy of protective order issued to the tenant (as a victim of domestic violence) within the past 90 days of the incident  Del. Code tit. 25 § 5316.(a)
  • Copy of (law enforcement agency) report stating that tenant has informed the agency that he or she is a victim of domestic violence

The landlord may not raise the rent, refuse to rent, decrease any services or make a tenant to terminate the tenancy just because the tenant is a victim (of domestic violence, sexual offenses or stalking).

There are exceptions which allow the landlord to terminate the lease or increase the rent. Refer to Del. Code tit. 25 § 5316.(c) for more details.

Property Damage Due to Fire, Disaster or Unavoidable Accident

If the property is badly damaged by fire or natural disaster (such as earthquake or flood), the tenant can immediately move out and stop paying rent. The tenant must inform the landlord that he or she intends to terminate the tenancy within one week of vacating the unit... and the tenancy will be terminated once the tenant moves out.  Del. Code tit. 25 § 5309.(a)

If the tenant fails to inform the landlord of his or her decision to terminate tenancy within one week of moving out, the tenant will pay rent until the day when the landlord finds out the tenant has moved out.

After the tenant moves out, the landlord has to return any security deposit, pet deposit and prepaid rent (left after deductions) to the tenant.  Del. Code tit. 25 § 5309.(b)

If only part of the property is damaged, the tenant should move out of the damaged area. The rent amount will be lowered based on how much of the property is still livable.

Shortened 30 Day Notice to Quit for Tenants

Delaware landlord tenant law Del. Code tit. 25 § 5314 also allows the tenant to terminate the rental agreement earlier by giving the landlord a written 30 day notice to quit (instead of the standard 60 day) in the following situations:

  • Tenant changes to a new work place that is at least 30 miles away.  Del. Code tit. 25 § 5909.(2)
  • Tenant's family member dies OR tenant/tenant's family suffers from serious illness that will require the tenant to move to a new residence  Del. Code tit. 25 § 5909.(2)
  • Tenant is moving into a senior citizens' housing facility (which includes subsidized public housing, subsidized private housing, group living facility and retirement homes)
  • Tenant is moving into a subsidized rental unit subsidized by the government or a private nonprofit corporation
  • Tenant enters the US military after signing a rental agreement
  • Tenant who is a victim of domestic violence
  • Tenant dies and tenant's representative or spouse decides to terminate the rental agreement

Notice to Quit Contents

If you are the tenant, your notice must contain the following:

  • Address of rental property
  • Termination date and time
  • Signature of person giving the notice

If you're the landlord, your notice must ALSO contain the following:

  • Why the tenancy is being terminated
  • Any corrective action that tenant may take to avoid termination of tenancy and when it must be completed (if applicable)
  • Landlord may sue to remove tenant from the property if tenant doesn't move out by termination date

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Eviction

According to Delaware landlord tenant law, the following are valid reasons for evicting tenants and the minimum number of days for giving them a notice to quit:

Tenant did not pay rent

5 days

Tenant violated tenancy agreement or didn't perform duties

7 days

Tenant was involved in illegal activities on property

Immediate

Tenant threatened another person's health and safety

Immediate

Whether you are a landlord evicting someone or a tenant facing eviction, it's important that you handle matters correctly according to your state laws.

If you have any questions or doubts on eviction, you can ask a local landlord tenant lawyer online.

Tenant Did Not Pay Rent

If the tenant did not pay rent on time, the landlord can send the tenant a five day written notice to terminate the tenancy. This notice must state the amount of rent owed and inform the tenant that he or she can choose to pay or move out.  Del. Code tit. 25 § 5502

If the tenant pays the rent within five days, he or she may continue staying on the property.

Tenant Violated Tenancy Agreement or Didn't Perform Duties

If the tenant violates the tenancy agreement (or fails to perform his or her duties), the landlord shall inform the tenant of the violation in writing and give the tenant seven days to correct the violation or the tenancy shall terminate after seven days. If the tenant corrects the violation within seven days, the tenant may stay. The violations in this section do not apply for rent payments.  Del. Code tit. 25 § 5512.(a)

If the tenant commits a similar violation within one year, the landlord may terminate the rental agreement with a seven day notice without giving the tenant a chance to correct the violation.  Del. Code tit. 25 § 5513.(a)(1)

If the tenant's violation can be corrected by the landlord, the landlord may correct the tenant's violation and have the tenant pay for the (cleaning or repair) costs as 'additional rent'.  Del. Code tit. 25 § 5513.(a)(2)

If a tenant's violation causes (or threatens to cause) irreparable harm to any person or property, the landlord may correct the violation and terminate the rental agreement immediately without giving notice.

The landlord may also obtain a court order to evict the tenant.  Del. Code tit. 25 § 5513.(b)

Eviction Notice

Also known as "Notice of Termination of Tenancy" or "Notice to Quit", Delaware landlord tenant law requires all eviction notices to contain the following:

  • Reason(s) for termination of tenancy
  • Date and time that tenancy will terminate
  • State that the tenant must move out of the property by the termination date and time
  • State that the landlord may sue to remove the tenant from the property if the tenant doesn't move out by termination date and time

If Delaware landlord tenant law allows the tenant to avoid eviction by correcting the problem(s), the eviction notice must also contain:

  • The corrective action(s) to be taken by for the tenant
  • The date and time by which the correction action(s) must be completed

The landlord can serve an eviction notice to the tenant in three ways:

  1. Deliver the notice to the tenant in person
  2. Leave the notice at the property if the tenant is absent
  3. Send the notice by registered or certified mail

Unlawful Eviction

According to Delaware landlord tenant law, the landlord CANNOT force the tenant to move out by shutting off utilities (electricity, water, gas, sanitation), changing the locks, taking the tenant's belongings or taking possession of the property by force without a court hearing.  Del. Code tit. 25 § 5315

If the landlord forces the tenant to move out with (the unlawful methods above) or shuts off utilities, the tenant can EITHER

  1. regain possession of the property OR
  2. terminate the tenancy agreement

In addition, the tenant may also sue the landlord for three times the amount of actual damages OR three times the amount of daily rent during the period that the tenant was unlawfully evicted (depending on which amount is greater).

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Abandonment

When is it Abandonment?

There are no specific Delaware landlord tenant laws on when the property is considered as being abandoned by the tenant.

We recommend that the landlord and tenant work out the following details and include them in the rental agreement.

In most states, it is considered that the tenant has abandoned the property if one or more of the following conditions are met:

  • Tenant has been absent from the property for more than X days
  • Tenant didn't inform the landlord that he or she will be away from the property for X days
  • Tenant is more than X days late in paying rent

If a tenant abandons the unit, the tenant will have to pay rent due for the remainder of the tenancy duration plus actual damages until a new tenant moves into the property  Del. Code tit. 25 § 5507.(d)

Dealing with Abandoned Belongings

The landlord may remove abandoned belongings from the property and store them for up to seven days for residential homes (and 30 days for manufactured homes).  Del. Code tit. 25 § 5507.(e), 5715

If the tenant does not claim his or her belongings AND pay the landlord for all moving plus storage costs after seven days (or 30 days), the landlord may dispose the belongings.

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Resources

Delaware Landlord Tenant Law: Delaware Code Title 25 Part III - Residential Landlord Tenant Code

Delaware Landlord Tenant Handbook: Delaware Tenants' Rights Guide

If you have any questions or need legal advice, you can ask a local landlord tenant lawyer online.

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