Quick Reference: Delaware Summary Possession at a Glance

Delaware runs residential evictions through the Justice of the Peace Court under a statute that is unusually specific about dates. Two notice periods are central to the process: at least 5 days for unpaid rent, and at least 7 days to cure a material lease breach.

Those two numbers are counted differently, and the reason sits in a provision many guides do not mention. Under 25 Del. C. 5112, when a period prescribed by statute is less than 7 days, intermediate Saturdays, Sundays and legal holidays are excluded from the computation. Seven days is not a period of less than seven, so the exclusion applies to the 5-day notice and not to the 7-day notice.

That distinction helps explain why Delaware guidance sometimes describes the rent notice period differently. This guide covers each notice, how the days actually count, what happens once a complaint is filed, the eviction diversion requirement, and the appeal and writ stages.

How Delaware Counts the Days

Section 5112 sets three rules that apply across the Code, and they should be applied before any deadline is diaried.

• The trigger day is excluded. The day of the act, event or default from which the period begins to run is not included, unless a statute, order or rule specifically includes it.

• The last day counts, unless it falls badly. The last day is included, unless it is a Saturday, Sunday or legal holiday, in which case the period runs to the end of the next day that is none of those.

• Short periods skip weekends. When the period prescribed is less than 7 days, intermediate Saturdays, Sundays and legal holidays are excluded from the computation.

Applied to the two main notices, the 5-day demand under 5502 is a period of less than 7 days, so intermediate Saturdays, Sundays and legal holidays are excluded from the computation and the notice period may span more than five calendar days. The 7-day cure period under 5513 is not a period of less than 7 days, so intermediate Saturdays, Sundays and legal holidays are included. The ordinary last-day rule still applies.

The 5-Day Notice: Unpaid Rent

Under 25 Del. C. 5502(a), a landlord or the landlord's agent may, at any time after rent is due, demand payment and notify the tenant in writing that unless payment is made within a time stated in the notice, not less than 5 days after the date notice was given or sent, the rental agreement terminates. If the tenant remains in default, the landlord may then bring an action for summary possession.

The demand may be made at any time after rent is due, including during the window before late fees may be imposed. Under 5501(d), a late charge cannot exceed 5 percent of monthly rent and cannot be imposed within 5 days of the agreed payment time, and if the landlord does not maintain an office or other permanent place for receipt of payments in the county, the agreed time for payment is extended by 3 days.

Two provisions on accepting payment deserve attention. Under 5502(c), if the tenant pays all rent due before the landlord initiates an action and the landlord accepts without a written reservation of rights, the landlord may not then initiate an action for summary possession or failure to pay rent. Under 5502(d), if the tenant pays all rent due after the action is initiated and the landlord accepts without a written reservation of rights, the landlord may not maintain that action for past due rent. The operative words in both are "without a written reservation of rights."

The 7-Day Notice: Breach of Rules and Covenants

25 Del. C. 5513(a) applies where the tenant breaches a rule or covenant material to the rental agreement, and expressly does not apply to late rent, which is covered by 5502. The landlord must notify the tenant in writing and allow at least 7 days for remedy or correction.

The statute prescribes what the notice must contain. Under 5513(a)(1), the notice shall:

• substantially specify the rule allegedly breached

• advise the tenant that if the violation continues after 7 days, the landlord may terminate the rental agreement and bring an action for summary possession

• state that it is given pursuant to this section

• state that if the tenant commits a substantially similar breach within 1 year, the landlord may rely on the notice as grounds for initiating a summary possession action

That fourth element is the one landlords most often omit, and omitting it costs the repeat-breach right. The statute also clarifies that issuing a notice does not itself establish that the initial breach occurred.

Two further routes sit in the same section. Under 5513(a)(2), if the breach can be remedied by the landlord, as by cleaning, repairing or replacing a damaged item, the landlord may remedy it and bill the actual and reasonable costs as additional rent, payable immediately on receipt. Under 5513(a)(3), if the breach also materially breaches an obligation imposed on tenants by a municipal, county or state code, the landlord may terminate and bring the action.

Immediate termination. Under 5513(b), where a breach causes or threatens to cause irreparable harm to any person or property, or the tenant is convicted of a class A misdemeanour or felony during the tenancy that caused or threatened such harm, the landlord may remedy and bill, immediately terminate on notice and bring the action, or both. There is no cure period. Section 5115 separately allows an application for a forthwith summons where substantial or irreparable harm is demonstrated by substantial evidence.

The 60-Day Notice: Ending the Tenancy Without Cause

Delaware's no-cause period is longer than many states, and the start date is unusual.

Under 25 Del. C. 5106(d), where the term is month-to-month, either party may terminate by giving the other a minimum of 60 days' written notice, and that 60-day period begins on the first day of the month following the day of actual notice. Notice given on 10 March does not start running until 1 April.

For fixed terms, 5106(c) requires a minimum of 60 days' written notice before expiry, indicating that the agreement terminates on its expiration date, and a tenant terminating a fixed term gives the same 60 days.

Section 5107 governs renewal with changes. A landlord renewing on amended terms, including a different rent or security deposit, must give at least 60 days' written notice specifying the modifications and their effective date. The tenant has until 45 days before the last day of the term to give notice of intention to terminate, failing which the amended terms are deemed accepted. Under 5108, where a lease of a year or more ends without the landlord's 60 days' notice and without the tenant's 45 days' notice, the term becomes month-to-month on the same other terms.

Filing in the Justice of the Peace Court

Under 25 Del. C. 5701, a summary possession action is maintained in the Justice of the Peace Court that hears civil cases in the county where the premises are located. Where a county has more than one civil location, 5701A assigns each a territory by court rule, and the action goes to the court with jurisdiction over that territory.

Section 5702 lists the grounds, the main residential ones being holding over after expiry without permission, wrongful failure to pay the agreed rent, wrongful deduction from rent, breach of a lawful obligation relating to use of the premises, and conviction of a class A misdemeanour or felony during the tenancy that caused or threatened irreparable harm.

Commencement and service. The action is commenced by filing a complaint for possession. Under 5705(a), the notice and complaint must be served at least 5 days and not more than 30 days before the hearing, and under 5705(b) filed with proof of service before the hearing and no later than 5 days after service. Section 5706 sets the hierarchy: personal service as for a summons; failing that, leaving a copy with a person of suitable age and discretion residing or employed in the unit; and failing that after reasonable effort, affixing a copy conspicuously within one day and mailing a copy by certified mail or first class mail with a certificate of mailing.

What the complaint must say. Section 5707 requires the plaintiff's interest, the defendant's interest and relationship, a description of the unit, the facts relied on with any written notice attached as an exhibit, and the relief sought.

Section 5708 adds requirements where possession is sought for breach of a use obligation: the rule breached, the date and manner it was made known to the tenant, the facts of the breach with specificity and that required notice was given, the facts constituting a continued or recurrent violation, the purpose served by the rule, and where the rule was not in the original agreement, that it does not substantially modify the tenant's bargain or that the tenant consented knowingly in writing.

Section 5704A requires documentation at filing showing the property complies with Chapter 54 on lead-based paint hazards, unless the complaint is about the tenant refusing access for that compliance.

The Residential Eviction Diversion Program

This is the part of Delaware practice most likely to be missing from older guidance.

Section 5702A required the Justice of the Peace Court to establish a residential eviction diversion program. Under 5702A(c)(1), after a landlord files an action for possession, the case is scheduled for mediation between filing and trial. A trial may not commence until the landlord has engaged in mediation, except where the tenant fails to engage within 15 calendar days after service of process. Mediation must be scheduled and completed at least 48 hours before the trial date, and a tenant's failure to engage does not delay the trial.

Mediation is one component of the programme rather than the whole of it. The Justice of the Peace Court's published procedures describe three routes: direct negotiation between the parties through an online messaging platform, assistance from neutral trained mediators, and mediation conferences on request. The Court states that all residential summary possession complaints filed on or after 1 July 2024 are subject to the programme.

The affidavit requirement. Beyond the statute, the Court's procedures require the landlord to file a Landlord's Affidavit of Participation in Eviction Diversion Program at least 5 days before the hearing, with a copy sent to the tenant at the same time. The Court states it will not hold a hearing until the landlord has both participated, including in any scheduled mediation conference, and filed that affidavit, and that failure may result in dismissal of the complaint or a continuance. Treat participation and the affidavit as pre-hearing checklist items rather than something to address in the final days.

The Court also notes that merely registering and logging on does not establish participation. It describes participation as active engagement, including initiating and responding to communications and cooperating with any mediator.

Exceptions. Under 5702A(c)(2) and the Court's procedures, the landlord is not required to participate where a forthwith summons is granted under 5115, where the landlord alleges and demonstrates by substantial evidence irreparable harm or a qualifying conviction under 5513(b), in actions for waste or damages under 5513(c) relating to obligations under 5512, or where the tenant has not registered and engaged within 15 days after being formally served.

Trial, Judgment and Default

At the hearing the defendant or any person in possession may answer orally or in writing under 5709, including any legal or equitable defence or counterclaim within the court's jurisdiction. Under 5710, triable issues of fact are tried by the court, which may adjourn on proof that time is needed to procure witnesses or evidence, but not more than 10 days except by consent. Either party may demand a jury under 5713. Section 5711 requires a final judgment determining the parties' rights and awarding costs to the successful party.

Default judgment is constrained. Under 5712(a), no judgment for the plaintiff may be entered unless the court is satisfied on competent proof that the defendant received actual notice, or having abandoned the unit cannot be found after reasonable diligence. Posting plus first class mail evidenced by a certificate of mailing is acceptable as actual notice for this purpose, and a party may move within 10 days to vacate a default judgment or nonsuit.

Appeal, Writ and Execution

The appeal window is short and it controls when possession can actually be recovered.

Under 5717(a), a party aggrieved by a non-jury judgment may request in writing, within 5 days after judgment, a trial de novo before a special court of three justices of the peace, which renders final judgment within 15 days of the request. The request does not stay proceedings unless the aggrieved party files an undertaking with bond or other assurance as the court requires.

Section 5717(d) is the provision to plan around: the court shall not issue the writ of possession during the 5-day appeal period. After it ends, the court may issue the writ at the plaintiff's request if the defendant has appealed but not filed a bond, other assurance or an in forma pauperis request to stay issuance. If the plaintiff executes before the appeal is determined and the appealing party ultimately succeeds, the plaintiff is responsible for reasonable cover damages including substitute housing or relocation, plus costs and fees.

Section 5716 gives a separate stay where a nonpayment default arose out of a good faith dispute: the tenant may stay proceedings by paying all rent due at judgment plus costs, or by filing an undertaking to pay within 10 days.

The writ. Under 5715(a), the court issues it on final judgment for the plaintiff, but in no case before the time for appeal or a motion to vacate has expired. Under 5715(b), the officer must give at least 24 hours' notice and must execute between sunrise and sunset. Under 5715(c), the plaintiff has the obligation to notify the constable to take the steps necessary to obtain possession.

Property and locks. Where no appeal has been filed and the tenant fails to remove property, 5715(e) permits removal and storage at the tenant's expense for 7 days, after which unclaimed property is deemed abandoned, with a 30-day period for manufactured homes under Chapter 70. The statute prescribes the exact notice language the writ must carry. Under 5715(h), where the premises are to be leased again the plaintiff must change the locks at the time actual repossession occurs, and a plaintiff who does not is liable to a new tenant injured through entry by the dispossessed tenant using a retained key.

What Delaware Landlords Cannot Do

Four provisions constrain the process in ways that catch out-of-state operators.

• No attorney fee clauses. Section 5111 makes unenforceable any rental agreement provision allowing either party to recover attorney fees in any suit arising from the tenancy. A fee-shifting clause copied from another state's lease does not work here.

• No unilateral ouster. Section 5702(7) recognises wrongful ouster of a rightful tenant as a ground for a summary possession action, and 5703 permits the tenant to bring such an action. A landlord seeking possession should use the statutory court process rather than unilaterally removing the tenant.

• No retaliation. Section 5516 prohibits pursuing summary possession, demanding a rent increase or decreasing services after the tenant has complained in good faith about a code violation, after an authority has filed such a notice, after the tenant has organised or become an officer of a tenants' organisation, or after the tenant has pursued a legal right arising from the tenancy. Action within 90 days of the complaint is presumed retaliatory. The section lists twelve defences, including good faith intent to occupy, substantially alter or withdraw the unit. A successful tenant recovers 3 months' rent or treble damages, whichever is greater, plus costs.

• No confessed judgment. Section 5121 voids any provision authorising a person other than the tenant to confess judgment against the tenant.

Documents You Must Give the Tenant

Two separate disclosure duties bear on eviction defences, and their delivery requirements are not the same.

• Section 5118 requires a summary of the Landlord-Tenant Code, prepared by the Consumer Protection Unit of the Attorney General's Office, to be given to a new tenant at the beginning of the rental term. If the landlord fails to provide it, the tenant may plead ignorance of the law as a defence.

• Section 5124 separately requires a rights and responsibilities guide, provided before a prospective tenant enters the rental agreement, with the tenant acknowledging receipt, and again where a rental agreement is renewed for a term of one year or more. Section 5124 expressly permits that guide and its acknowledgement to be provided electronically or on paper, and a violation of it is deemed an unlawful practice under Title 6.

Tenant Right to Representation

Chapter 56 of Title 25 creates a right to legal representation in evictions and other landlord-tenant actions, and it imposes a disclosure duty on landlords that attaches directly to the notices this article covers.

Who qualifies. Under 5602(a)(1), a tenant has the right to legal representation where household income over the preceding 12 months is not greater than 200 percent of the federal poverty guidelines. Under 5602(a)(2), a tenant is not eligible where the landlord has an ownership interest in 3 or fewer rental units and is not represented by an attorney or an authorised agent, where a designated organisation finds a conflict of interest, where representation is declined for defined reasons including a determination that a defence lacks merit, or where other circumstances make representation infeasible. Section 5602(e) qualifies the right by the availability of representation and the implementation period, and 5607 phases implementation over a period ending no later than 30 June 2028, subject to funding.

When it attaches. Under 5602(b), entitlement arises as soon as practicable after a landlord gives a notice under 5502 that rent is past due, a notice under 5513 of a material violation, or a notice under 5106 terminating an agreement that may only be terminated for good cause or material violation, and also on initiation of a covered proceeding or termination of a housing subsidy.

The landlord's disclosure duty. This is the provision most directly relevant to a Delaware notice practice. Under 25 Del. C. 5606, a landlord must provide the tenant with informational materials approved by the Right to Representation Coordinator explaining the legal representation available and identifying available resources. The Coordinator prepares them in English, Spanish and Haitian Creole. They must be provided at four points:

1. After 22 November 2023, on signing a written rental agreement or entering an oral one

2. On the first renewal or modification of a rental agreement occurring after 22 November 2023

3. When the landlord provides any of the notices under 5602(b)(1), which are the 5502, 5513 and qualifying 5106 notices

4. When a tenant receives notice of termination of a housing subsidy

In practice, the informational materials should travel with the 5-day and 7-day notices as a matter of course, rather than being treated as a separate onboarding item.

Record Shielding

Section 5720 allows a defendant to apply for an order shielding the record of a summary possession action. The court must grant it where, among other grounds, five or more years have passed since a satisfied judgment and the defendant has no similar judgments within five years, the parties resolved by stipulated agreement with which the defendant complied, the complaint was withdrawn or dismissed, or judgment was for the defendant. On shielding, the action is deemed not to have been filed and within 45 days the court must remove the record from publicly accessible databases. There is no filing fee.

Common Delaware Compliance Mistakes

1. Counting the 5-day notice as five calendar days. Section 5112 excludes intermediate Saturdays, Sundays and legal holidays from periods of less than 7 days.

2. Excluding weekends from the 7-day notice. Seven is not a period of less than 7 days, so intermediate Saturdays, Sundays and legal holidays are included.

3. Omitting the repeat-breach language from a 5513 notice. Without it, the notice does not support reliance on a substantially similar breach within a year.

4. Accepting rent without a written reservation of rights. Under 5502(c) and (d) that can bar or end the action.

5. Starting the 60 days on the day notice is given. For month-to-month, it starts the first day of the following month.

6. Copying an attorney fee clause into a Delaware lease. Section 5111 makes it unenforceable for both sides.

7. Assuming a hearing follows filing. Eviction diversion participation is required, and the Court requires the Landlord's Affidavit of Participation at least 5 days before the hearing.

8. Planning possession without the 5-day appeal window. Section 5717(d) bars issuing the writ during it.

9. Serving a 5502 or 5513 notice without the right to representation materials. Section 5606(3) requires them at the time those notices are given.

Building the Filing File

A Delaware filing rests on dated records: the notice and how it was served, the ledger behind the rent claim, the rule and when the tenant was told of it, the diversion affidavit, and the correspondence in between.

RIOO can help property managers keep that documentation organised in one system rather than across inboxes and spreadsheets. Rent and payment records held through rent and payment collection support the delinquency date and payment history a 5502 case turns on. Lease documents and management agreements held in contracts and renewals keep the terms and rules retrievable, the same discipline behind sound lease management practice. A consolidated tenant record and tenant portal keep notices and correspondence on one timeline, which matters when retaliation is raised and the 90-day presumption applies. Condition records at move-in and move-out and repair history through service request and task management support both a breach allegation and any habitability defence.

Conclusion

Delaware's eviction process is prescribed in unusual detail. The statute sets how many days, how to count them, what the notice must say, what the complaint must contain, when mediation happens, when the writ may issue and when the constable may execute it.

The practical consequence is that the calendar and the drafting carry as much weight as the underlying facts. A five-day notice counted as calendar days is premature. A 5513 notice missing the repeat-breach sentence does not support reliance on a later similar breach. Rent accepted without a written reservation of rights can end an action already filed.

For managers in Wilmington, Dover, Newark, Middletown and Smyrna, the working sequence is: identify the ground, pick the right notice, include the 5606 informational materials, count the days under 5112, serve and keep proof, file in the correct Justice of the Peace territory with the notice attached, complete eviction diversion and file the affidavit, and diary the five-day appeal window before planning the lock change.

This blog is for informational purposes only and does not constitute legal advice. Delaware landlord-tenant law and Justice of the Peace Court practice change, and individual circumstances differ. For guidance on a specific filing, consult a licensed Delaware attorney and check current Justice of the Peace Court forms and rules.

Frequently Asked Questions

Q1. How many days is a Delaware eviction notice for unpaid rent?
Not less than 5 days under 25 Del. C. 5502(a). Because 5112 excludes intermediate Saturdays, Sundays and legal holidays from periods of less than 7 days, the five days will usually span more than five calendar days.

Q2. Is the Delaware 7-day notice counted in business days?
No. Section 5112 excludes weekends and legal holidays only where the period is less than 7 days. A seven-day cure period under 5513 counts intermediate weekends and holidays, subject to the rule that the last day rolls forward if it falls on a Saturday, Sunday or legal holiday.

Q3. What must a Delaware 7-day lease violation notice say?
Under 5513(a)(1) it must substantially specify the rule breached, advise that the landlord may terminate and bring summary possession if the violation continues after 7 days, state that it is given under that section, and state that a substantially similar breach within 1 year may be relied on as grounds for filing.

Q4. How much notice ends a month-to-month tenancy in Delaware?
A minimum of 60 days' written notice under 5106(d), with the 60-day period beginning on the first day of the month following the day of actual notice.

Q5. Is mediation required before a Delaware eviction trial?
Generally yes. Under 5702A, cases are scheduled for mediation between filing and trial, trial may not commence until the landlord has engaged in mediation, and mediation must be completed at least 48 hours before trial. Exceptions apply under 5115 and 5513(b) and (c) and where substantial or irreparable harm is demonstrated.

Q6. What happens if a landlord accepts rent after serving a notice?
Under 5502(c), accepting all rent due before filing without a written reservation of rights bars initiating the action. Under 5502(d), accepting all rent due after filing without a written reservation of rights means the landlord may not maintain the action for past due rent.

Q7. How long after judgment can a Delaware tenant be removed?
The writ cannot issue during the 5-day appeal period under 5717(d), and once issued, 5715(b) requires the officer to give at least 24 hours' notice and to execute between sunrise and sunset.

Q8. Must a Delaware landlord give anything else with a 5-day or 7-day notice?
Yes. Under 25 Del. C. 5606(3), a landlord must provide informational materials approved by the Right to Representation Coordinator, explaining the legal representation available to tenants and identifying resources, when giving any notice under 5602(b)(1). That includes the 5502 nonpayment notice and the 5513 material violation notice.

Q9. Can a Delaware lease require the tenant to pay the landlord's attorney fees?
No. Section 5111 makes unenforceable any provision in a rental agreement providing for recovery of attorney fees by either party in any suit arising from the tenancy.