Delaware laws govern much of the landlord-tenant relationship, including security deposits, late rent, and evictions. Here's a breakdown of key laws that affect nearly all Delaware landlords and tenants.
Delaware law regulates some—but not all—aspects of the tenant application and screening process.
There is no law in Delaware that prohibits landlords from charging an application fee.
Landlords can't charge "assurance money"—a deposit to reserve the unit for the applicant for a certain amount of time. (Del. Code tit. 25, § 5310 (2024).)
Landlords are free to charge tenants for the cost of obtaining a credit report or other screening report, but can't charge more than the report actually costs. (Del. Code tit. 25, § 5310 (2024).) When a tenant is required to pay a fee to determine the tenant's credit worthiness, it's considered an application fee, and can't exceed the greater of either 10% of the monthly rent or $50.
A city or county law might prohibit landlords from asking about an applicant's criminal history and running a criminal background check, but there is no statewide law on the topic.
Even if the city or county where the rental is located does not prohibit landlords from considering applicants' criminal histories, landlords must be careful. When landlords consider applicants' criminal history, they must do so in a consistent, nondiscriminatory manner. If a landlord's practice of considering criminal history has a discriminatory effect—for example, if the landlord asks only applicants of a certain color for criminal history information—the landlord is engaging in illegal discrimination and can be subject to penalties. Also, landlords can reject applicants only for past convictions that are "directly-related" to the application—in other words, convictions that have a negative bearing on a legitimate business concern of the landlord.
All landlords need to follow federal and state antidiscrimination laws when screening applicants for a rental. Federal fair housing laws prohibit landlords from discriminating on the basis of:
Delaware law also bars landlords from discriminating on the basis of creed, marital status, source of income, occupation, or because the tenant has a child or children in the family. (Del. Code tit. 25, § 5116 (2024).)
For more information about Delaware's fair housing laws, check out the Delaware Division of Human & Civil Rights' website.
Delaware law dictates how much landlords can charge for a security deposit and when they must return the security deposit.
The maximum amount a Delaware landlord can charge for a security deposit depends on the type of tenancy.
Tenants may offer to supply a surety bond in the place of or with a deposit, and the landlord has the option of accepting it. (Del. Code tit. 25, §§ 5311, 5514 (2024).)
Landlords must place the security deposit in an escrow bank account in a federally-insured bank with an in-state office. The account must be designated as a security deposits account and can't be used for the landlord's business. The landlord must tell the tenant where the security deposit is held. (Del. Code tit. 25, § 5514 (2024).)
There is no requirement that landlords pay interest on security deposits. Within 20 days after the termination of a tenancy, the landlord must provide the tenant with an itemized list of damages and the estimated costs of repair for each. Any excess must be returned to the tenant.
The tenant has 10 days after receipt of the itemization and payment to object to it. If the tenant doesn't object within this timeframe, they waive the right to dispute it. (Del. Code tit. 25, § 5514 (2024).)
If the landlord fails to return the security deposit to the tenant within the 20 days entitles the tenant to double the amount wrongfully withheld. (Del. Code tit. 25, § 5514(g) (2024).)
Tenants have the option of purchasing a surety bond instead of paying a security deposit. A landlord can't require a surety bond, though, and doesn't have to accept one. The amount of a surety bond purchased instead of a security deposit can't exceed one month's rent. (Del. Code tit. 25, § 5514(a) (2024).)
In many states, landlords must disclose specific information to tenants and potential tenants. Delaware law requires the following disclosures:
In addition to these state-required disclosures, landlords in all states must follow federal lead-based paint disclosure rules.
Small claims courts are courts that allow people to resolve disputes such as security deposit battles at a low cost and with simpler procedures than you'd encounter in a more general court. The small claims court in Delaware is called the Justice of the Peace Court.
Parties in the Delaware Justice of the Peace Court can request an award of up to $25,000. Landlords can also bring eviction lawsuits in the Justice of the Peace Court.
Parties are allowed to hire attorneys to represent them in the Justice of the Peace Court, but, to save money and because the procedures are designed for people without attorneys, many people choose to represent themselves.
Rent is due on whatever day the landlord and tenant agree to.
Delaware does not have a statutory grace period for paying rent. However, the landlord and tenant can agree to a grace period in the lease or rental agreement.
Landlords can charge late fees of up to 5% of the monthly rent. Late fees can't be imposed until rent is five days late. If the landlord doesn't have an office or other permanent place for receipt of payments in the county where the rental is located, the tenant has an additional three days before the late fee can be imposed. (Del. Code tit. 25, § 5501 (2024).)
Delaware landlords can't raise the rent during the term of a lease unless the lease specifically allows them to do so. If the landlord intends to renew the lease but wants to change the terms (including rent), the landlord must give the tenant at least 60 days' notice before the expiration of the lease. After receipt, if the tenant doesn't tell the landlord they don't want to renew the lease at least 45 days before the last day of the terms, it's presumed that the tenant has accepted the new lease. (Del. Code tit. 25, § 5107 (2024).)
For month-to-month tenancies, landlords can raise the rent by giving the tenant 60 days' written notice of the increase. If the tenant doesn't object within 15 days, the rent increase will go into effect on the date specified on the notice. (Del. Code tit. 25, § 5107 (2024).)
Landlords in Delaware have a duty to keep the rental fit for human habitation. This duty includes:
(Del. Code tit. 25 § 5305 (2024).)
Delaware allows tenants to repair-and-deduct or withhold rent when certain conditions arise.
When a landlord fails to repair, maintain, or keep in a sanitary condition the rental, or fails to provide maintenance as agreed to in the lease, the tenant must notify the landlord in writing. If, after receiving the notice, the landlord fails to fix the problem within 30 days or fails to initiate correction of the problem within 10 days of receiving the notice, the tenant can have the work done.
After the work is done, the tenant can deduct from the rent a reasonable amount—not more than the lesser of $400 or a half-month's rent—from their rent. The tenant must submit copies of receipts for the work to the landlord.
This repair-and-deduct remedy can be used only by tenants who are paid up in rent.
When a landlord fails to provide hot water, heat, water, or electricity, or fails to fix a major problem, the tenant must give the landlord notice of the problem. If the violation continues for 48 hours or more the tenant can:
If the tenant has given notice of the problem and chose to stay in the rental, but the landlord continues to allow the problem to persist, the tenant has the option of getting substitute housing and not having to continue to pay rent. The landlord might also be responsible for covering any additional expenses of the tenant up to one-half the amount of regular rent.
(Del. Code tit. 25, § 5308 (2024).)
Delaware landlords must follow very specific rules and procedures in order to terminate a tenancy and then, if necessary, file an eviction lawsuit.
To end a tenancy before the term has expired, the landlord must have "legal cause"—a good reason. In Delaware, legal cause is defined as a failure to pay rent, a violation of the lease or rental agreement, irreparable harm to another person or the rental property, or violation of the law. The first step in removing the tenant from the rental for one of these reasons is to give one of the following written notices:
The process for ending a tenancy without cause depends on the type of tenancy. Here's what needs to happen to end a month-to-month tenancy or a tenancy with a long-term lease.
If the tenant has a written month-to-month rental agreement, and the landlord wants the tenant to move out but doesn't have cause to end the tenancy, the landlord must give the tenant notice at least 60 days' written notice. The 60-day notice period begins on the first day of the month following the actual day of notice. (Del. Code tit. 25, § 5106(c) (2024).)
If the tenant doesn't move out by the end of the notice period, the landlord can file an eviction lawsuit.
If a landlord wants a tenant with a long-term lease (a lease with a definite end date) to move, but doesn't have legal cause to end the tenancy, the landlord has to wait until the lease ends. The landlord should give the tenant 60 days' notice that they do not intend to renew the lease. If the landlord fails to give this notice, and the tenant doesn't give at least 45 days' notice that they don't plan to renew, the tenancy becomes month-to-month with the same terms as the now-expired lease. (Del. Code tit. 25, § 5108 (2024).)
After an eviction (or even after a tenant simply moves out), the landlord might find that the tenant has left behind personal property at the rental unit. If the property clearly is garbage, the landlord can throw it away.
Otherwise, what the landlord can do with the tenant's property depends on why the tenant left.
If you're a landlord who believes that a tenant has abandoned the rental and left behind items of value, it might be a good idea to consult with a local attorney before disposing of the items. You'll want to make sure you've done everything possible to confirm that the property has truly been abandoned.
Even though a landlord might have a valid reason to evict a tenant, the tenant can still choose to fight the eviction. For example, the tenant could claim that the eviction is the result of the landlord illegally discriminating, or is in retaliation for the tenant exercising a legal right.
A tenant's decision to fight the eviction could increase the costs of the eviction, and it could result in the tenant having more time to remain in the rental. For these reasons, it's often in the best interests of both the tenant and the landlord to try to negotiate a compromise rather than head to court. Mediation is a common way for landlords and tenants to work out issues—check to see if your community has a low-cost or free housing mediation program.
Landlords can't take self-help measures to evict a tenant. For example, Delaware landlords can't exclude the tenant from the rental by changing the locks, nor can they cut off the electricity, gas, water, or other essential services.
In Delaware, a landlord who illegally removes a tenant from the rental or prohibits the tenant from entering might be liable for the greater of three times the tenant's damages or an amount equal to three times the daily rent for the time the tenant was out of the rental. The tenant can also recover the costs of any lawsuit. (Del. Code tit. 25, § 5313 (2024).)
Tenants are obligated to allow their landlord reasonable access to the rental so the landlord can inspect, make necessary repairs, and show the unit to possible buyers or renters.
Except in cases of emergency or when the tenant has given permission, the landlord must give the tenant 48 hours' notice, and can enter only between 8 a.m. and 9:00 p.m. A waiver of this notice can be incorporated into the rental agreement only regarding showings to potential tenants or purchasers. (Del. Code tit. 25, § 5509 (2024).)
Tenants have the right to install a new lock at their own expense, as long as:
(Del. Code tit. 25, § 5509 (2024).)
Delaware is one of the few states to offer the right to an attorney for some tenants who are facing eviction. To find out more about the right to counsel in Delaware, visit the Eviction Help site maintained by the Community Legal Aid Society, Inc.
Tenants who are victims of domestic violence are entitled to some protections, such as the ability to end a lease early with just 30 days' notice. (Del. Code tit. 25, § 5314 (2024).) You can find out more about victims' rights on the Delaware Coalition Against Domestic Violence's website.
If you want to read the text of a law itself, visit the Delaware Code online.
Cities and counties often pass local ordinances, such as rent control rules, health and safety standards, noise and nuisance regulations, and anti-discrimination rules that affect landlords and tenants. Many municipalities have websites—just search for the name of a particular city in Delaware and then do a search when you're on the site.
Municode is a good source for finding local governments online. Also, your local public library or office of the city attorney, mayor, or city or county manager can provide information on local ordinances that affect landlords and tenants in Delaware.
Congress and federal agencies, such as the U.S. Department of Housing and Urban Development (HUD) and the U.S. Environmental Protection Agency (EPA), have enacted laws and regulations that apply to the landlord-tenant relationship in Delaware. These laws and regulations address topics such as discrimination and landlord responsibilities to disclose environmental health hazards, such as lead-based paint.
The U.S. Code is the starting place for most federal statutory research. It consists of 53 separate numbered titles, each covering a specific subject matter. Most federal regulations are published in the Code of Federal Regulations ("CFR"). To access the U.S. Code and Code of Federal Regulations online, see the federal section of the Library of Congress's legal research site.
For more information on legal research, check out Legal Research: How to Find & Understand the Law, by Stephen Elias (Nolo). This nontechnical book gives easy-to-use, step-by-step instructions on how to find legal information.
You'll also find a wealth of information in Nolo's landlord-tenant books.
For landlords:
For tenants:
Need a lawyer? Start here.
Ready to create a lease?