Successful property managers in Delaware know the importance of staying on top of landlord-tenant law. They choose tenants in a nondiscriminatory way, maintain their rental properties, and follow all state security deposit rules. Less successful landlords too often fail to comply with their legal responsibilities, with the result that many end up spending a great deal of time and money dealing with tenant disputes and lawsuits.
Here are top ways to follow the law and stay out of legal trouble in Delaware.
1. Comply With Anti-Discrimination Laws
Before you advertise a vacant apartment, it is crucial that you understand fair housing laws and what you can say and do when selecting tenants. This includes how you advertise a rental, the questions you ask on a rental application or when interviewing potential tenants, and how you deal with tenants who rent from you. Failure to know and follow the law may result in costly discrimination complaints and lawsuits.
While Delaware landlords are legally free to reject applicants—based on a bad credit history, negative references, from previous landlords, past behavior, such as consistently paying rent late, or other factors that make them a bad risk—this doesn’t mean that anything goes. You are not free to discriminate against prospective tenants based on their race, religion, national origin, sex, familial status (such as having children under age 18) or physical or mental disability. These are “protected categories” under the federal Fair Housing Act of 1968, as amended (42 U.S. Code §§ 3601-3619 and 3631). There are a few exemptions to federal antidiscrimination rules, including owner-occupied buildings with four or fewer units, and single-family houses, as long as the owner owns no more than three rental houses at a time.
State law in Delaware also prohibits discrimination on the basis of a person’s sexual orientation or gender identity.
The HUD website provides extensive details on fair housing laws. Be sure to also check with your state fair housing agency for additional laws prohibiting discrimination or limiting landlord exemptions.
2. Follow State Rent Rules
All landlords want their tenants to pay rent on time and without hassle. If you need to raise the rent or evict a tenant who hasn’t paid rent, you’ll want to be sure you comply with the specific rules and procedures in Delaware. State law regulates several rent-related issues; for example, you can’t charge a late fee until the rent is more than five days late (and the late fee can not exceed 5% of the rent). For details, see Delaware Late Fees, Termination for Nonpayment of Rent, and Other Rent Rules.
3. Meet State Security Deposit Limits and Return Rules
Security deposits are among the biggest sources of dispute between landlords and tenants. To avoid problems, be sure you know state law limits on how much deposit you can charge (one month’s rent on leases for one year or more in Delaware, but no limit for month-to-month rental agreements), when the deposit must be returned (within 20 days after the tenant moves out), and other restrictions on deposits. Using a landlord-tenant checklist when a tenant moves in (and moves out of) a rental, and sending a written security deposit itemization when the tenant leaves will go a long way in avoiding disputes.
4. Provide Habitable Housing
You are legally required to keep rental premises livable in Delaware, under a legal doctrine called the “implied warranty of habitability.” If you don’t take care of important repairs, such as a broken heater, tenants in Delaware may have several options, including the right to withhold rent or to “repair and deduct.”
Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner, and Janet Portman (Nolo) includes extensive advice on establishing a repair and maintenance system that will help prevent problems, such as tenant rent withholding or injuries to tenants due to defective conditions in the rental.
5. Prepare a Legal Written Lease or Rental Agreement
The rental agreement or lease that you and your tenant sign sets out the contractual basis of your relationship with the tenant, and is full of crucial business details, such as how long the tenant can occupy the rental and the amount of the rent. Taken together with federal, state, and local landlord-tenant laws, your lease or rental agreement sets out all the legal rules you and your tenant must follow.
Problems arise when landlords include illegal clauses in the lease, such as a waiver of landlord responsibility to keep premises habitable, or when landlords fail to make legally required disclosures (discussed in the next section). And even if it’s not required that you cover a particular issue in your lease, such as how when and how you can enter rental property, you can avoid all kinds of disputes by using an effective and legal lease and rental agreement that clearly informs tenants of their responsibilities and rights.
6. Make Legally Required Disclosures
Under Delaware law, landlords must make certain disclosures to tenants (usually in the lease or rental agreement), such as a summary of the state Landlord-Tenant Code. Landlords must also comply with required federal disclosures regarding lead-based paint on the property, or face hefty financial penalties.
7. Respect Tenants’ Privacy
Delaware landlords must provide two days’ notice before entering rental property—for example, to make repairs or show the property to prospective tenants. To avoid problems, include a lease or rental agreement clause that complies with the law and lets the tenant know your right of entry; also, keep written records of your requests to enter rental units.
8. Don't Retaliate Against a Tenant Who Exercises a Legal Right
It is illegal to retaliate in Delaware —for example, by attempting to raise the rent or evict a tenant for complaining about an unsafe living. To avoid problems, or counter false retaliation claims, establish a good paper trail to document how you handle repairs and other important facts of your relationship with your tenant.
9. Follow Exact Procedures for Terminating a Tenancy or Evicting a Tenant
State laws specify when and how a landlord may terminate a tenancy. Failure to follow the legal rules may result in delays (sometimes extensive) in terminating a tenancy. Delaware laws are very specific as to the amount and type of termination notice—for example, you may terminate a tenancy immediately if a tenant threatens to cause irreparable harm to your property or another tenant. See State Laws on Unconditional Quit Terminations and State Laws on Termination for Violation of Lease for information on these types of termination notices in Delaware.
10. Take Advantage of Legal Resources Available to Landlords
Be sure to check out government agencies, such as the U.S. Department of Housing and Urban Development (HUD) and state fair housing agencies which provide useful legal information and publications on their websites. You’ll also find helpful guides to tenant rights and landlord-tenant law on the website of your state attorney general’s office or consumer protection agency.
Finally, if you have legal questions about your rental unit, you should consult with an experienced landlord-tenant attorney in Delaware.