Do I Need to Serve Notice on A Guest to Have Them Move Out in Delaware?
Full Question:
Answer:
Generally, a tenant without a written lease is considered a month-to-month tenant-at-will. Delaware statutes require a 60 day written notice to be served on the tenant to terminate a tenancy at will. A 7 day notice may be served for a breach of the lease terms, other than unpaid rent. When a breach by a tenant causes or threatens to cause irreparable harm to any person or property, or the tenant is convicted of a class A misdemeanor or felony during the term of the tenancy which caused or threatened to cause irreparable harm to any person or property, the landlord may terminate the tenancy without notice.
Please see the following DE statutes:
§ 5513. Landlord remedies relating to breach of rules and covenants.
(a) If the tenant breaches any rule or covenant which is material to the rental agreement, the landlord shall notify the tenant of such breach in writing, and shall allow at least 7 days after such notice for remedy or correction of the breach. This section shall not apply to late payment of rent which is covered under § 5502 of this title.
(1) Such notice shall substantially specify the rule allegedly breached and 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. Such notice shall also state that it is given pursuant to this section, and if the tenant commits a substantially similar breach within 1 year, the landlord may rely upon such notice as grounds for initiating an action for summary possession. The issuance of a notice pursuant to this section does not establish that the initial breach of the rental agreement actually occurred for purposes of this section.
(2) If the tenant's breach can be remedied by the landlord, as by cleaning, repairing, replacing a damaged item or the like, the landlord may so remedy the tenant's breach and bill the tenant for the actual and reasonable costs of such remedy. Such billing shall be due and payable as additional rent, immediately upon receipt.
(3) If the tenant's breach of a rule or covenant also constitutes a material breach of an obligation imposed upon tenants by a municipal, county or state code, ordinance or statute, the landlord may terminate the rental agreement and bring an action for summary possession.
(b) When a breach by a tenant causes or threatens to cause irreparable harm to any person or property, or the tenant is convicted of a class A misdemeanor or felony during the term of the tenancy which caused or threatened to cause irreparable harm to any person or property, the landlord may, without notice, remedy the breach and bill the tenant as provided in subsection (a) of this section; immediately terminate the rental agreement upon notice to the tenant and bring an action for summary possession; or do both.
(c) Upon notice to tenant, the landlord may bring an action or proceeding for waste or for breach of contract for damages suffered by the tenant's wilful or negligent failure to comply with tenant's responsibilities under the preceding section. The landlord may request a forthwith summons.
25 Del. C. § 5106. Rental agreement; term and termination of rental
agreement.
(a) No rental agreement, unless in writing, shall be effective for a
longer term than 1 year.
(b) Where no term is expressly provided, a rental agreement for
premises shall be deemed and construed to be for a month — to-month term.
(c) The landlord may terminate any rental agreement, other than
month-to-month agreements, by giving a minimum of 60 days' written notice
to the tenant prior to the expiration of the term of the rental
agreement. The notice shall indicate that the agreement shall terminate
upon its expiration date. A tenant may terminate a rental agreement by
giving a minimum of 60 days' written notice prior to the expiration of
the term of the rental agreement that the agreement shall terminate upon
its expiration date.
(d) Where the term of the rental agreement is month-to-month, the
landlord or tenant may terminate the rental agreement by giving the other
party a minimum of 60 days' written notice, which 60-day period shall begin
on the 1st day of the month following the day of actual notice.
(e) With regard to a tenant occupying a federally-subsidized housing
unit, in the event of any conflict between the terms of this Code and the
terms of any federal law, regulations or guidelines, the terms of the
federal law, regulations or guidelines shall control.
25 Del. C. § 5316. Protection for Victims of Domestic Abuse, Sexual Offenses
and/or Stalking.
(a) A landlord may not pursue any action for summary possession, demand
any increase in rent, decrease any services, or otherwise cause any
tenant to quit a rental unit where said tenant is a victim of domestic
abuse, sexual offenses, or stalking, and where said tenant has obtained
or has sought assistance for domestic abuse, sexual offenses, or stalking
from any court, police, medical emergency, domestic violence, or sexual
offenses program or service.
(b) If the tenant proves that the landlord instituted any of the
actions prohibited by subsection (a), above, within 90 days of any
incident in which the tenant was a victim of domestic abuse, sexual
offenses and/or stalking, it shall be a rebuttable presumption that said
action is in violation of subsection (a), above.
(c) A landlord may rebut the presumption that the prohibited action is in
violation of subsection (a), above if:
(1) The landlord is seeking to recover possession of the rental unit on
the basis of an appropriate notice to terminate which was given to the
tenant prior to the incident of domestic abuse, sexual offenses, or
stalking;
(2) The landlord seeks in good faith to recover possession of the rental
unit for immediate use as the landlord's own residence;
(3) The landlord seeks in good faith to recover possession of the
rental unit for the purpose of substantially altering, remodeling or
demolishing the premises;
(4) The landlord seeks in good faith to recover possession of the
rental unit for the purpose of immediately terminating, for at least 6
months, use of the premises as a rental unit;
(5) The landlord has in good faith contracted to sell the property and
the contract of sale contains a representation from the purchaser
confirming his or her intent to use the property in consistency with
paragraphs (2), (3) or (4) of this subsection;
(6) The landlord has become liable for a substantial increase in
property taxes or a substantial increase in other maintenance or operating
costs, and such liability occurred not less than 4 months prior to the
demand for the increase in rent, and the increase in rent does not exceed
the pro-rata portion of the net increase in taxes or cost;
(7) The landlord has completed a substantial capital improvement of the
rental unit or the property of which it is a part, not less than 4 four
months prior to the demand for increased rent, and such increase in rent
does not exceed the amount which may be claimed for federal income tax
purposes as a straight-line depreciation of the improvement, pro-rated
among the rental units benefited by the improvement;
(8) The landlord can establish, by competent evidence, that the rent now
demanded of the tenant does not exceed the rent charged other tenants of
similar rental units in the same complex;
(9) The landlord can establish, by competent evidence, that the
domestic abuse, sexual assault and/or stalking constitutes a viable and
substantial risk of serious physical injury to a tenant who currently
resides in another unit of the same multi-unit building as the domestic
violence, sexual assault or stalking victim; or
(10) The landlord, after being given notice of the tenant's
victimization per 25 Del. C. Section 5141(6) or (26), discontinues those
actions prohibited by subsection (a), above.
(d) A tenant who is otherwise delinquent in the payment of rent may not
take advantage of the protection provided in this section.
25 Del. C. § 5702. Grounds for summary proceeding.
Unless otherwise agreed in a written rental agreement, an action for
summary possession may be maintained under this chapter because:
(1) The tenant unlawfully continues in possession of any part of the
premises after the expiration of the rental agreement without the
permission of the landlord or, where a new tenant is entitled to
possession, without the permission of the new tenant;
(2) The tenant has wrongfully failed to pay the agreed rent;
(3) The tenant has wrongfully deducted money from the agreed rent;
(4) The tenant has breached a lawful obligation relating to the
tenant's use of the premises;
(5) The tenant, employee, servant or agent of the landlord holds over
for more than 15 days after dismissal when the housing is supplied by the
landlord as part of the compensation for labor or services;
(6) The tenant holds over for more than 5 days after the property has
been duly sold upon the foreclosure of a mortgage and the title has been
duly perfected;
(7) The rightful tenant of the rental unit has been wrongfully ousted;
(8) The tenant refuses to yield possession of the rental unit rendered
partially or wholly unusable by fire or casualty, and the landlord requires
possession for the purpose of effecting repairs of the damage;
(9) The tenant is convicted of a class A misdemeanor or any felony
during the term of tenancy which caused or threatened to cause
irreparable harm to any person or property;
(10) A rental agreement for a commercial rental unit provides grounds for
an action for summary possession to be maintained; or
(11) Or, if, and only if, it pertains to manufactured home lots, for
any of the grounds set forth in the Manufactured Home Owners and
Community Owners Act, as amended.
25 Del. C. § 5704. Commencement of action and notice of complaint.
(a) The proceeding shall be commenced by filing a complaint for
possession with the court.
(b) Upon commencement of an action, the court shall issue the process
specified in the praecipe and shall cause service of the complaint on the
defendant, together with a notice stating the time and place of the
hearing. The notice shall further state that if the defendant shall fail at
such time to appear and defend against the complaint, defendant may be
precluded from afterwards raising any defense or a claim based on such
defense in any other proceeding or action.
(c) The party requesting the issuance of process may file a motion for
the appointment of a special process server, consistent with Justice of
the Peace Court Civil Rules. The party requesting the appointment of a
special process server may prepare a form of order for signature by the
clerk of court under the seal of the court. Blank forms for a motion for
the appointment of a special process server and for an order appointing
such a special process server shall be provided by the clerk of the court
on request of the party.
25 Del. C. § 5705. Service and filing of notice.
(a) The notice of hearing and the complaint shall be served at least 5
days and not more than 30 days before the time at which the complaint is
to be heard.
(b) The notice and complaint, together with proof of service thereof,
shall be filed with the court before which the complaint is to be heard
prior to the hearing, and in no event later than 5 days after service. If
service has been made by certified or registered mail, the return
receipt, signed, refused or unclaimed, shall be proof of service.
(c) Service of the notice and complaint may be made in any manner
consistent with either § 5704 or § 5706 of this title.
See also:
http://delcode.delaware.gov/title25/c055/index.shtml
