Tenant's Right to Break a Rental Lease in Delaware

Learn when and how tenants may legally break a lease in Delaware and how to limit liability for rent through the end of the lease term.

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Many tenants who sign a lease for their apartment or rental unit plan to stay for the full amount of time required in the lease, such as one year. But despite your best intentions, you may want (or need) to leave before your lease is up—for example, if you’re a student at the University of Delaware and only want to stay in your apartment for the period of time that school is in session. Or perhaps you’re moving in with your boyfriend or girlfriend. Sometimes, you may need to move in order to be closer to your new job or an elderly parent who needs your help

Leaving before a fixed-term lease expires without paying the remainder of the rent due under the lease is called breaking the lease. Here’s a brief review of tenant rights in Delaware to break a lease without further liability for the rent.

Tenant Rights and Responsibilities When Signing a Lease in Delaware

A lease obligates both you and your landlord for a set period of time, usually a year. Under a typical lease, a landlord can’t raise the rent or change other terms, until the lease runs out (unless the lease itself provides for a change, such as a rent increase mid-lease). A landlord can’t force you to move out before the lease ends, unless you fail to pay the rent or violate another significant term, such as repeatedly throwing large and noisy parties. In these cases, landlords in Delaware must follow specific procedures to end the tenancy. For example, your landlord must give you five days’ notice to pay the rent or leave (Delaware Rev. Stat. Ann. §33-1368) before filing an eviction lawsuit. If you have violated a lease provision that is also a violation of municipal, county, or state code or statute, your landlord may give you an unconditional quit notice, giving you seven days to move out. (Del. Code Ann. tit. 25 §§ 5513, 5514).

Tenants are legally bound to pay rent for the full lease term, typically one year, whether or not you continue to live in the rental unit—with some exceptions, as follows.

When Breaking a Lease Is Justified in Delaware

There are some important exceptions to the blanket rule that a tenant who breaks a lease owes the rent for the entire lease term. You may be able to legally move out before the lease term ends in the following situations.

You Need to Move Because of Job Relocation or Health Reasons

Tenants in Delaware need only give 30 days' notice to end a long-term lease if the tenant needs to move because an employer has relocated more than 30 miles away, or because serious health problems (of the tenant or a family member) require a permanent move). (Del. Code Ann. tit. 25 § 5314 (b).)

You Will Be Moving Into Senior Housing or Subsidized Housing

A tenant who will be moving into a public or private senior citizen's housing facility or a subsidized rental unit, may terminate the lease early, by providing 30 days' notice. (Del. Code Ann. tit. 25 § 5314 (b).)

You Are a Victim of Domestic Abuse, Sexual Offenses, or Stalking

State law (Del. Code Ann. tit. 25 § 5314 (b)) provides early termination rights for tenants who are victims of domestic violence, provided the tenant gives the landlord 30 days' notice.

You Are Starting Active Military Duty

If you enter active military service after signing a lease, you have a right to break the lease under federal law. (War and National Defense Servicemembers Civil Relief Act, 50 App. U.S.C.A. §§ 501 and following.) You must be part of the “uniformed services,” which includes the armed forces, commissioned corps of the national Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard. You must give your landlord written notice of your intent to terminate your tenancy for military reasons. Once the notice is mailed or delivered, your tenancy will terminate 30 days after the date that rent is next due, even if that date is several months before your lease expires.

The Rental Unit Is Unsafe or Violates Delaware Health or Safety Codes

If your landlord does not provide habitable housing under local and state housing codes, a court would probably conclude that you have been “constructively evicted;” this means that the landlord, by supplying unlivable housing, has for all practical purposes “evicted” you, so you have no further responsibility for the rent. Delaware law (Del. Code Ann. tit. 25, §§ 5307, 5308 and 5308(b)(3)) sets specific requirements for the procedures you must follow before moving out because of a major repair problem. The problem must be truly serious, such as the lack of heat or other essential service.

Your Landlord Harasses You or Violates Your Privacy Rights

Under state law in Delaware, your landlord must give you two days’ notice to enter rental property. (Del. Code. Ann. tit. 25, §§5509, 5510.) If your landlord repeatedly violates your rights to privacy, or does things like removing windows or doors, turning off your utilities, or changing the locks, you would be considered “constructively evicted,” as described above; this would usually justify you breaking the lease without further rent obligation.

Landlord’s Duty to Find a New Tenant in Delaware

If you don’t have a legal justification to break your lease, the good news is that you may still be off the hook for paying all the rent due for the remaining lease term. This is because under Delaware law (25 Del. Code Ann. § 5507(d)(2)), your landlord must make reasonable efforts to re-rent your unit—no matter what your reason for leaving—rather than charge you for the total remaining rent due under the lease. So you may not have to pay much, if any additional rent, if you break your lease. You need pay only the amount of rent the landlord loses because you moved out early. This is because Delaware requires landlords to take reasonable steps to keep their losses to a minimum—or to “mitigate damages” in legal terms.

So, if you break your lease and move out without legal justification, your landlord usually can’t just sit back and wait until the end of the lease, and then sue you for the total amount of lost rent. Your landlord must try to rerent the property reasonably quickly and subtract the rent received from new tenants from the amount you owe. The landlord does not need to relax standards for acceptable tenants—for example, to accept someone with a poor credit history. Also, the landlord is not required to rent the unit for less than fair market value, or to immediately turn his or her attention to renting your unit disregarding other business. Also, the landlord can add legitimate expenses to your bill—for example, the costs of advertising the property.

If your landlord rerents the property quickly (more likely in college towns and similar markets), all you’ll be responsible for is the (hopefully brief) amount of time the unit was vacant.

The bad news is that if the landlord tries to rerent your unit, and can’t find an acceptable tenant, you will be liable for paying rent for the remainder of your lease term. This could be a substantial amount of money if you leave several months before your lease ends. Your landlord will probably first use your security deposit to cover the amount you owe. But if your deposit is not sufficient, your landlord may sue you, probably in small claims court where the limit is $15,000 in Delaware.

How to Minimize Your Financial Responsibility When Breaking a Lease

If you want to leave early, and you don’t have legal justification to do so, there are better options than just moving out and hoping your landlord gets a new tenant quickly. There’s a lot you can do to limit the amount of money you need to pay your landlord—and help ensure a good reference from the landlord when you’re looking for your next place to live.

You can help the situation a lot by providing as much notice as possible and writing a sincere letter to your landlord explaining why you need to leave early. Ideally you can offer your landlord a qualified replacement tenant, someone with good credit and excellent references, to sign a new lease with your landlord.

More Information on Tenant Rights to Break a Lease

Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart (Nolo) provides extensive legal and practical advice that every tenant needs, from move in to move out, including how to get your landlord to cancel your lease, plus dozens of forms and sample letters.

More Information on Landlord-Tenant Law in Delaware

To learn more about landlord-tenant laws in your state, see the State Landlord-Tenant Laws section of the Nolo site.

 

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