Overview of Landlord-Tenant Laws in Delaware

Find out key laws every Delaware landlord and tenant needs to know.

By , Attorney · UC Berkeley School of Law

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 Rental Application and Tenant Screening Laws

Delaware law regulates some—but not all—aspects of the tenant application and screening process.

Application Fees

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.

Criminal History Screening

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.

Fair Housing Laws

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.

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Delaware Security Deposit Laws

Delaware law dictates how much landlords can charge for a security deposit and when they must return the security deposit.

Delaware Maximum Security Deposit

The maximum amount a Delaware landlord can charge for a security deposit depends on the type of tenancy.

  • Leases of one year or longer: One month's rent.
  • Month-to-month tenancies: No limit for the first year, but after that the limit is one month's rent. At the expiration of one year, the landlord must give the tenant a credit for any deposit held by the landlord that exceeds one month's rent.
  • Furnished units: No limit.

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).)

How Landlords Must Hold Security Deposits in Delaware

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).)

When and How Landlords Must Return Security Deposits in Delaware

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).)

Surety Bonds in Lieu of Security Deposits

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).)

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Required Landlord Disclosures in Delaware

In many states, landlords must disclose specific information to tenants and potential tenants. Delaware law requires the following disclosures:

  • Owner or agent identity: On each written rental agreement, the landlord must prominently disclose the names and business addresses of all owners of the rental or the names and business addresses of their resident agents. (Del. Code tit. 25, § 5105 (2024).)
  • Summary of landlord-tenant law: A summary of the Landlord-Tenant Code, as prepared by the Consumer Protection Unit of the Attorney General's Office or its successor agency, must be given to the new tenant at the beginning of the rental term. If the landlord fails to provide the summary, the tenant may plead ignorance of the law as a defense to any claims brought by the landlord. (Del. Code tit. 25, § 5118 (2024).)
  • Separate utility metering: Landlords may install meters for the purposes of separately charging individual units for utility services, but can only bill tenants according to these measurements if the rental agreement discloses the existence and use of meters. (Del. Code tit. 25, § 5312 (2024).)
  • Bed bug information: Before showing or renting a unit, landlords must inspect rentals for evidence of bed bugs and may not show or rent units that the landlord knows or has reason to know are infested. Landlords must tell prospective tenants whether adjacent units are infested with or are being treated for an infestation. (Del. Code tit. 25, § 5317 (2024).)
  • Right to counsel. Landlords must provide tenants with informational materials that explain tenants' rights to legal representation in evictions and other landlord-tenant proceedings. The materials must be provided when signing a lease or entering into an oral tenancy, on the first renewal or modification of a rental agreement, when the landlord provides any other notices regarding the right to counsel, or when the tenant receives notice of the termination of a housing subsidy. (Del. Code tit. 25, § 5606 (2024).)

In addition to these state-required disclosures, landlords in all states must follow federal lead-based paint disclosure rules.

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Small Claims Lawsuits in Delaware

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.

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Delaware Late Fees and Other Rent Rules

Rent is due on whatever day the landlord and tenant agree to.

Grace Period

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.

Late Fees

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).)

Rent Increases

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).)

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Landlords in Delaware Must Provide Habitable Rentals

Landlords in Delaware have a duty to keep the rental fit for human habitation. This duty includes:

  • complying with all applicable building codes
  • ensuring that the rental doesn't endanger the health, welfare, or safety of the tenants
  • keeping the common areas in clean and sanitary condition
  • making all repairs and arrangements necessary to put and keep the rental unit in as good as condition as they were (or should've been) at the beginning of the tenancy, and
  • maintaining all electrical, plumbing, and other facilities supplied by the landlord in good working order.

(Del. Code tit. 25 § 5305 (2024).)

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Tenant Rights to Repair-and-Deduct and Withhold Rent in Delaware

Delaware allows tenants to repair-and-deduct or withhold rent when certain conditions arise.

Repair-and-Deduct Remedy

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.

Rent Withholding Remedy

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:

  • notify the landlord in writing that the condition is still continuing and immediately terminate the tenancy, or
  • upon written notice to the landlord, keep two-thirds of the rent due for each day that hot water, heat, water, electricity, or substitute housing isn't supplied.

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).)

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Delaware Termination and Eviction Rules

Delaware landlords must follow very specific rules and procedures in order to terminate a tenancy and then, if necessary, file an eviction lawsuit.

Notice of Termination for Cause

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:

  • Five-Day Notice to Pay Rent. If the tenant doesn't pay rent on the due date, the landlord can give the tenant a five-day notice to pay rent. The notice must inform the tenant that they have five days to pay rent in full or the tenancy will end. If the tenant doesn't pay rent in full within the five-day period, the landlord can file an eviction lawsuit against the tenant. (Del. Code tit. 25, § 5502 (2024).)
  • Seven-Day Notice to Remedy. If the tenant violates the lease or rental agreement, the landlord can give the tenant a seven-day notice to remedy the problem. The notice must inform the tenant that they have seven days to fix the violation or the tenancy will end. If the tenant doesn't fix the problem, the landlord can file an eviction lawsuit against the tenant. (Del. Code tit. 25, § 5513 (2024).)
  • Seven-Day Unconditional Quit Notice: An unconditional quit notice allows the landlord to immediately terminate the tenancy and not give the tenant any time to correct the behavior leading to the termination. Under Delaware law, if the tenant's violation of the lease or rental agreement also violates a city, county, or state law, the landlord doesn't have to give the tenant a chance to fix it—the landlord can just let the tenant know that the tenancy is ending in seven days. If the tenant doesn't move out within the seven-day period, the landlord can file an eviction lawsuit against the tenant. (Del. Code tit. 25, § 5513(a).)
  • Unconditional Quit Notice (No Notice Period Required): The landlord can immediately terminate the tenancy of a tenant who causes or threatens to cause irreparable harm to the rental or surrounding property. The landlord can go straight to court and file an eviction suit. (Del. Code tit. 25, § 5513 (2024).)

Notice of Termination Without Cause

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.

Ending a Month-to-Month Tenancy Without Cause

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.

Ending a Tenancy With a Long-Term Lease Without Cause

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).)

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What Landlords Must Do With Tenants' Abandoned Property

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 the tenant appears to have abandoned the property, or has moved out for a reason other than being evicted, the landlord can immediately remove and store—at the tenant's expense—all items left at the rental. If the court grants summary possession to the landlord, and there's no appeal, the landlord can dispose of the property seven days after the appeal period has expired. (Del. Code tit. 25, § 5507 (2024).)
  • If the tenant fails to remove their property after an eviction, the landlord can immediately remove and store the property for seven days at the tenant's expense. If the tenant doesn't claim the property during this time period, the landlord can dispose of the property. (Del. Code tit. 25, § 5715 (2024).)

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.

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Tenant Defenses to Eviction

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.

Illegal Evictions

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).)

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Delaware Rules About Landlords' Access to Property

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' Rights to Change the Locks

Tenants have the right to install a new lock at their own expense, as long as:

  • the tenant notifies the landlord in writing and supplies the landlord with a key to the lock
  • the new lock fits into the system already in place, and
  • the lock installation doesn't cause damage to the door.

(Del. Code tit. 25, § 5509 (2024).)

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Other Delaware Landlord-Tenant Laws

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.

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Where to Find Delaware Landlord-Tenant Laws

If you want to read the text of a law itself, visit the Delaware Code online.

Local Ordinances Affecting Delaware Landlords and Tenants

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.

Federal Landlord-Tenant Laws and Regulations

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.

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Nolo Resources on Legal Research and Landlord-Tenant Law

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:

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