CHAPTER 472
FORMERLY HOUSE SUBSTITUTE NO. 1
FOR HOUSE BILL NO. 433
AS AMENDED BY HOUSE AMENDMENTS NO. 1,2,4,5,6,7, AND 9 AND
SENATE AMENDMENTS NO. 1,2,3, AND 5
AN ACT TO AMEND TITLES 10 AND 25 OF THE DELAWARE CODE RELATING TO LANDLORD-TENANT RELATIONSHIPS.
Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the members elected to each house thereof concurring therein):
Section 1. Amend Title 25, Delaware Code, by striking Chapters 51, 53, 55, 57, 59, 61, 63, 65, and 67 thereof in their entireties and amend Title 10, Delaware Code, by striking Subchapter V of Chapter 96 thereof in its entirety and substituting in lieu thereof the following:
CHAPTER 51. LANDLORD — TENANT CODE
§ 5101. Short Title
This Act shall be known and may be cited as the Landlord-Tenant Code.
§ 5102. Purposes and policies
This Act shall be liberally construed and applied to promote its underlying purposes and policies.
The underlying purposes and policies of this Act are:
(1) to simplify and clarify the law governing landlord and tenant relationships;
(2) to encourage landlords and tenants to maintain and improve the quality of housing in this State; and
(3) to revise and modernize the law of landlord and tenant to serve more realistically the needs of a modern day society.
§ 5103. Applicability of act
This Act shall regulate and determine all legal rights, remedies, and obligations of the parties and beneficiaries of any rental agreement of a rental unit within this State, wherever executed. Any agreement, whether written or oral, shall be unenforceable insofar as the agreement or any provision thereof conflicts with any provision of this Act and is not expressly authorized herein. Such unenforceability shall not affect other provisions of the agreement which can be given effect without such void provision.
Any person, whether or not a citizen or resident of this State, who owns, holds an ownership or beneficial interest in, uses, manages, or possesses real estate situated in this State, submits himself or his personal representative to the jurisdiction of the courts of this State as to any action proceeding for the enforcement of an obligation arising under this Code.
§ 5105. Service of notice
(1) The notice required by the provisions of this Landlord-Tenant Code shall be served either personally upon the tenant or on the landlord, or upon the tenant by leaving a copy thereof at his dwelling place or usual place of abode with an adult person eighteen (18) years of age or older residing therein and upon the landlord by leaving a copy thereof, at his dwelling place or usual place of abode with an adult person, eighteen (18) years of age or older residing therein or with an agent or other person in the employ of the landlord whose responsibility it is to accept such notice. If the landlord is a corporation, firm, or unincorporated association, service of the notice required by this Landlord-Tenant Code may be made by leaving a copy thereof, at its office or place of business to an agent authorized by appointment or by law to receive service of process.
(2) In lieu of personal service or service by copy, of the notice required by this Code, a copy of such notice may be sent by registered or certified mail, postpaid, addressed to the tenant, at the leased premises, or to the landlord at his last know place of abode; or, if the latter is a corporation, firm or unincorporated
association, at the last known office or place of business thereof. The return receipt, signed or unsigned, in case of a notice sent by registered or certified mail, shall be held and considered as prima facie evidence of the service of such notice.
(1) On each written rental agreement, the landlord shall prominently disclose:
(a) the names and usual addresses of all persons who are owners of the rental unit or the property of which the rental unit is a part, or the name and address of their appointed resident agent; and
(b) the names and usual address of all persons who are landlords of the dwelling unit.
(2) In the case of an oral agreement, the landlord shall, on demand, furnish the tenant with a written statement containing the information required by subsection (1).
(3) Any owner or landlord not dealing with the tenant as a landlord shall be responsible for compliance with this Section by the landlord, and shall be estopped from any objection to a failure to service process upon him in any proceeding arising under this Code when such failure is due to failure to comply with this Section.
For purposes of this Code, the following words and phrases shall have the meanings respectively ascribed to them, unless otherwise expressly provided herein.
"Person" includes an individual, corporation, government, or governmental agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common trust, or any other legal or commercial entity.
A "dwelling unit" is a structure or that part of a structure
which is used as a home, residence, or sleeping place by one
person or by two or more persons maintaining a common household, to the exclusion of all others.
A "commercial unit" is a structure or that part of a structure which is used for purposes other than a dwelling unit or farm unit.
A "farm unit" is a rental unit used by a tenant for agricultural purposes to maintain a livelihood.
A "rental unit" is a term which encompasses dwelling, commercial and farm units.
"Premises" means a rental unit, appurtenances thereto, grounds and facilities held out for use of tenants generally and any other area or facility whose use is promised to the tenant.
"Rental agreement" means and includes all agreements, written or oral, which establish or modify the terms, conditions, rules, regulations, or any other provisions concerning the use and occupancy of a rental unit.
An "owner" means one or more persons, jointly or severally, in whom is vested:
(1) all or any part of the legal title to property; or
(2) (a) part of the beneficial ownership; and
(b) a right to present use and enjoyment of the property. A "landlord" means as follows:
(1) Landlord means the owner, lessor, or sub-lessor of the rental unit or the property of which it is a part and, in addition, means any person authorized to exercise any aspect of the management of the premises, including any person who, directly or indirectly, receives rents or any part thereof, other than as a bona fide purchaser, and who has no obligation to deliver the whole of such receipts to another person.
(0) Wherever landlord is used in this Code to signify the person to whom the tenant has a duty (including a condition to the exercise of a privilege), this duty may, at the tenant's election, be discharged in regard to:
(a) any person held out by any landlord as the appropriate party to accept performance, whether a landlord or not; or
(b) any person with whom the tenant normally deals as a landlord; or
(c) any person to whom the person specified in (1) or (2) is directly or ultimately responsible.
(3) Wherever landlord is used in this Code to signify the person who is under a duty; whether to a tenant or to property, all persons specified in (1) shall be responsible for its performance and liable for its non-performance. Nothing in this Subsection should be taken to forbid the allocation by agreement among multiple landlords of such duties, although no such agreement shall be effective as against a tenant or other party with rights against the landlord under this Code.
A "tenant" is any person who occupies a rental unit for dwelling, commercial, or agricultural purposes with the landlord's consent for an agreed upon consideration, including an occupant of any premises pursuant to a conditional sales agreement, and an occupant of a dwelling unit owned, operated or controlled by a public housing authority.
"Security Deposit" means any amount of money held by the landlord to compensate him for damages incurred by the tenant above normal wear and tear or for unpaid rent and refundable at the end of the term.
CHAPTER 55. GENERAL PROVISIONS
§ 5501. Term of rental agreement
(1) No rental agreement, unless in writing, shall be effective for a longer term than one (1) year.
(2) Where no term is expressly provided for,
(a) a rental agreement for premises other than a farm unit shall be deemed and construed to be for a term of one month.
(3) All rental agreements for premises other than a farm
unit may only be terminated upon a minimum of sixty (60) days' notice by either party prior to the expiration of the term, unless otherwise provided herein.
§ 5502. Automatic extension of rental agreements
(1) Where a rental agreement other than for farm unit is for one or more years, and sixty (60) days or upwards before the end of the term, either the landlord does not give notice in writing to the tenant in possession of his intention to terminate said rental agreement, or the tenant in possession does not give like notice to the landlord of his intention to terminate the rental agreement, the term shall become by the month and all other stipulations of the rental agreement shall continue in full force and effect.
§ 5503. Effect of unsigned rental agreement
(1) If the landlord does not sign a written rental agreement which has been signed and tendered to him by the tenant, acceptance of rent without reservation by the landlord shall give to the rental agreement the same effect as if it had been signed by the landlord.
(2) If the tenant does not sign a written rental agreement which has been signed and tendered to him by the landlord, acceptance of possession and payment of rent without reservation shall give to the rental agreement the same effect as if it had been signed by the tenant.
(3) Where the rental agreement which is given effect by the operation of this Section provides by its terms for a term longer than one year, it shall operate to create only a one-year term.
§ 5504. Separation of rents and obligations to property
Any agreement, conveyance, or trust instrument which authorizes a person other than the beneficial owner to act as the landlord of a rental unit shall operate, regardless of its terms, to authorize and require such person to use rents to conform with this Code and any other law, code, ordinance, or regulation concerning the maintenance and operation of the premises.
§ 5505. Exclusions from application of Code
The following arrangements are not intended to be governed by this Code, unless created solely to avoid the application of this Code:
(1) residence at an institution, whether public or private, where residence is merely incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar services, including (but not limited to) prisons, student housing provided by the college or school, old age homes, nursing homes, homes for unwed mothers, monasteries and nunneries, and hospitals.
(2) residence by members of a fraternal organization in a structure operated for the benefit of the organization.
(3) residence in a hotel, motel, cubicle hotel, or other transient lodgings.
§ 5506. Promises in rental agreement mutual and dependent —interpretation
(1) Material promises, agreements, covenants, or undertakings of any kind to be performed by either party to a rental agreement shall be interpreted as mutual and dependent conditions to the performance of material promises, agreements, covenants, and undertakings by the other party.
(2) A party undertaking to remedy a breach by the other party in accordance with this Code shall be deemed to have complied with the terms of this Code if his non-compliance with the exact instructions of this Code is nonmaterial and non-prejudicial to the other party.
CHAPTER 57. LANDLORDS OBLIGATIONS
AND TENANT REMEDIES
§ 5701. Landlord to supply possession of dwelling unit
The landlord shall supply the rental unit bargained for at the beginning of the term and put the tenant into full possession.
§ 5702. Tenant's remedies for failure to supply possession
If the landlord fails to put the tenant into full possession of the rental unit at the beginning of the agreed term, the rent shall abate during any period the tenant is unable to enter, and;
(1) upon notice to the landlord, the tenant may terminate the rental agreement at any time he is unable to enter into posession; and
(2) if such inability to enter is caused wrongfully by the landlord or by anyone with the landlord's consent or license for substantial failure to conform to existing building and housing codes, the tenant may recover reasonable expenditures necessary to secure adequate substitute housing for up to one (1) month, but in no event shall such expenditures exceed the agreed upon rent for one (1) month. Such expenditures may be recovered by appropriate action or proceeding or by deduction from the rent upon the submission of receipts for same.
(3) if such inability to enter results from the wrongful holdover of a prior tenant, the tenant may maintain a summary proceeding for possession against such wrongful occupant. The expenses of such proceeding and substitute housing expenditures, as provided in subsection (2), may be claimed from the rent in the manner specified in subsection (2).
§ 5703. Landlord to supply and maintain fit rental unit
(1)
The landlord shall at all times during the tenancy:
(a) comply with all applicable provisions of any State or local statute, code, regulation, or ordinance governing the maintenance, construction, use, or appearance of the rental unit and the property of which it is a part;
(b) provide a rental unit which shall not endanger the health, welfare, or safety of the tenants or occupants, and is fit for the purpose for which it is expressly rented;
(c) keep all areas of his building, grounds, facilities, and appurtenances in a clean and sanitary condition which are maintained by the landlord;
(d) make all repairs and arrangements necessary to put and keep the rental unit and the appurtenances thereto in as good condition as they were, or ought by law or agreement to have been, at the commencement of tenancy;
(e) maintain all electrical, plumbing, and other facilities supplied by him in good working order;
(f) if the rental agreement so specifies, provide and maintain appropriate receptacles and conveniences for the removal of ashes, rubbish, and garbage, and arrange for the frequent removal of such waste; and
(g) if the rental agreement so specifies, supply water, hot water and adequate heat as reasonably required by the tenant.
(2) The landlord and tenant may agree by a conspicuous writing independent of the rental agreement that the tenant is to perform specified repairs, maintenance tasks, alterations, or remodeling, but only if:
(a) the, particular work to be performed by the tenant is for the primary benefit of his rental unit, and will be substantially consumed during the remaining tenancy;
(b) the work is not necessary to bring a non-complying rental unit into compliance with a building or housing code, ordinance, or the like; and
(c) adequate consideration apart from any provision of the rental agreement is exchanged for the tenant's promise. In no event under this subsection may the landlord treat performance of this agreement as a condition to any provision of the rental agreement.
§ 5704. Tenant may terminate at beginning of term
If the landlord fails to substantially conform to the rental agreement, or if there is a material noncompliance with any code, statute, ordinance, or regulation governing the maintenance or operation of the premises, the tenant may, on written notice to the landlord, terminate the rental agreement and vacate the premises at any time during the first month of occupancy so long
as he remains in possession in reliance on a promise, whether written or oral, by the landlord to correct all or any part of the condition or conditions which would justify termination by the tenant under this section.
§ 5705. Tenant's remedy of termination at any time
(1) If there exists any condition which deprives the tenant of a substantial part of the benefit and enjoyment of his bargain, the tenant may notify the landlord in writing of the situation and if the landlord does not remedy the situation within fifteen (15) days terminate the rental agreement, after proceeding in a Justice of the Peace Court. Such notice need not be given when the condition renders the rental unit uninhabitable or poses an imminent threat to the health, welfare or safety of any occupant. The tenant may not terminate for a condition caused by the want of due care of the tenant, a member of his family, or other person on the premises with his consent.
(2) If the condition referred to in subsection (1) was caused willfully or negligently by the landlord, the tenant may recover any damages sustained as a result of the condition including, but not limited to, reasonable expenditures necessary to obtain adequate substitute housing for the term of the rental agreement.
§ 5706. Tenant's remedy of repair and deduct for minor defects
(1) If the landlord of a rental unit fails to repair, maintain, keep in sanitary condition the leased premises, or perform in any other manner required by statute or as agreed to in a rental agreement, and fails to remedy such failure within thirty (30) days after being notified in writing by the tenant to do so, the tenant may further notify the landlord of his intention to correct the objectionable condition at the landlord's expense and immediately do or have done the necessary work in a workmanlike manner. The tenant may deduct from his rent, a reasonable sum, not exceeding $50.00 for his expenditures by submitting to the landlord copies of his receipts covering at least the sum deducted.
(2) In no event may a tenant repair at the landlord's expense when the condition complained of was caused by the want of due care of the tenant, a member of his family, or other person on the premises with his consent.
§ 5707. Tenant's remedies for failure to supply heat, water or hot water
(I) If the landlord substantially fails to provide hot water, heat, or water in violation of the rental agreement or in violation of an applicable housing code to a tenant for forty-eight (48) hours after the tenant notifies him in writing of the failure, the tenant may:
(a) upon written notice to the landlord, immediately terminate the rental agreement; or
(b) upon written notice to the landlord, keep one-fourth (Y4) of the rent accuring during any period when hot water, heat or water is not supplied. The landlord may avoid this liability by a showing of impossibility of performance.
(2) If the landlord fails to provide a reasonable amount of water, hot water or adequate heat to the rental unit as specified in the applicable City or County Housing Code, in violation of the rental agreement, the tenant may:
(a) upon written notice to the landlord, immediately terminate the rental agreement; or
(b) upon notice to the landlord, procure adequate substitute housing for as long as heat or water or hot water is not supplied, during which time the rent shall abate and the landlord shall be liable for any additional expense incurred by the tenant, up to one-half (1/2) the amount of abated rent. This additional expense shall not be chargeable to the landlord if he is able to show impossibility of performance.
§ 5808. Tenant's remedies for fire or casualty damage
When the rental unit or any of the property or appurtenances necessary to the enjoyment thereof are rendered partially or wholly unusable by fire or other casualty which occurs without fault on the part of the tenant, a member of his family, or other person on the premises with his consent, the tenant may:
vacating, in which case the rental agreement shall terminate as of the date of notice. If the tenant fails to notify the landlord of his election to quit, he shall be liable for rent accruing to the date of the landlord's actual knowledge of the tenant's vacation or impossibility of further occupancy; or
(2) if continued occupancy is otherwise lawful, vacate any part of the premises rendered unusable by the fire or casualty, in which case the tenant's liability for rent shall be no more than the market value of that part of the premises which he continues to use and occupy.
§ 5709. Evidence of compliance
Evidence of compliance with an applicable housing code shall be prima fade evidence that the landlord has complied with the provisions of this Chapter or any other chapter of Title 25 of the Delaware Code.
CHAPTER 59. TENANT OBLIGATIONS AND
LANDLORD REMEDIES
(1) The landlord and tenant may agree to the consideration for rent. In the absence of such agreement, the tenant shall pay to the landlord a reasonable sum for the use and occupation of the rental unit.
(0) Rent shall be payable at the time and place agreed to by the parties. Unless otherwise agreed, the entire rent shall be payable at the beginning of any term for one (1) month or less, while one (1) month's rent shall be payable at the beginning of each month of a longer term.
(1) Except for the purposes of payment, rent shall be uniformly apportionable from day to day.
§ 5902. .Remedy for failure to pay rent
(1) A landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant in writing that unless payment is made within a time mentioned in such notice,
not less than five (5) days after receipt thereof, the rental agreement will be terminated. If the tenant remains in default, the landlord may thereafter bring a summary proceeding for possession of the dwelling unit or any other proper proceeding, action, or suit for possession.
(2) A landlord or his agent may bring an action for rent alone at any time after he has demanded payment of past due rent and notified the tenant of his intention to bring such an action.
§ 5903. Tenant to maintain rental unit
Each tenant shall comply with all obligations imposed upon tenants by applicable provisions of all municipal, county, and state codes, regulations, ordinances, and statutes and in particular:
(1) keep that part of the premises which he occupies and uses as clean and sanitary as the conditions of the premises permit;
(2) dispose from his rental unit all rubbish, garbage, and other organic or flammable waste, in a clean and sanitary manner;
(3) keep all plumbing fixtures as clean and sanitary as their condition permits;
(4) properly use and operate all electrical and plumbing fixtures;
(5) not permit any person on the premises with his permission to willfully or wantonly destroy, deface, damage, impair, or remove any part of the structure or rental unit or the facilities, equipment, or appurtenances thereto, nor himself do any such thing; and
(6) comply with all convenants, rules, requirements and the like which are in accordance with Section 5904 and which the landlord can demonstrate are reasonably necessary for the preservation of the property and persons of the landlord, other tenants, or any other person.
§ 5904. Tenant to use properly
whether denominated by the landlord as "rule" or otherwise concerning his use, occupation, and maintenance of his rental unit, appurtenances thereto, and the property of which the rental unit is a part if:
(a) Such obligations or restrictions are brought to the attention of the tenant at the time of his entry into the agreement to occupy the rental unit; or
(b) Such obligations or restrictions, if not so known by the tenant at the commencement of tenancy, are brought to the attention of the tenant and, if they work a substantial modification of his bargain, are consented to in writing by him.
(2) No such restriction or obligation shall be enforceable against the tenant unless:
(a) it is for the purpose of promoting the convenience, safety, quiet and private enjoyment or welfare of the tenants of the property, or for the preservation of the landlord's property from abusive use, or for the fair distribution of services and facilities held out for the tenants generally.
(b) It is reasonably related to the purpose for which it is promulgated.
(c) It applies to all tenants for the property in a fair manner.
(d) It is sufficiently explicit in it prohibition, direction, or limitation of the tenant's conduct to fairly inform him of what he must or must not do to comply.
§ 5905. Remedy for tenant's waste, failure to maintain, or unlawful use
(1) If the tenant breaches any rules or covenant which is material to the rental agreement, the landlord shall notify the tenant of his breach, in writing, and must allow at least seven (7) days after such notice for the remedy or correction of such breach. Such notice shall substantially specify the rule allegedly breached and advise the tenant that if the violation continues after
seven (7) days, the landlord may terminate the rental agreement and bring a proceeding for possession.
(a) if the tenant's failure 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 failure and bill him for the actual and reasonable cost of such remedy. This bill shall be treated by all parties as due and payable immediately upon receipt;
(b) if the tenant's failure constitutes a material breach of an obligation imposed upon tenants by a provision of a municipal, county or state code, ordinance, or statute, the landlord may terminate the rental agreement and bring a summary proceeding for possession.
(2) When a failure by a tenant causes or threatens to cause irreparable harm to any person or property, the landlord may, without notice, either remedy the failure and bill the tenant as provided in subsection (1) (a) and/or immediately terminate the rental agreement upon notice to the tenant and bring summary proceedings for possession.
(3) The landlord may also bring an action or proceeding for waste or for breach of contract for damage suffered by the tenant's willful or negligent failure to comply with his responsibilities under the proceding Section.
§ 5906. Tenant's responsibility to inform landlord and liability for failure to do so
(1) Any defective condition of the premises which comes to the tenant's attention, which he has reason to believe is unknown to the landlord, and which he has reason to believe is the duty of the landlord or of another tenant to repair, shall be reported in writing by the tenant to the landlord as soon as practicable. The tenant shall be responsible for any liability or injury resulting to the landlord as a result of the tenant's failure to do so.
(0) A tenant on whom a complaint in ejectment or an action in rem
is served shall immediately notify the landlord.
§ 5907. Notice of extended absence
The landlord may require, in the rental agreement, that the tenant notify him of any anticipated extended absence from the premises no later than the first day of such absence. This Section shall have no effect except as between the parties.
§ 5908. Landlord's remedies for absence, misuse, and abandonment
(1) If the rental agreement provides for notification of the landlord by the tenant of an anticipated extended absence; and the tenant fails to make reasonable efforts to comply with such requirement, the tenant shall indemnify the landlord for any harm resulting from such absence.
(2) The landlord may, during an extended absence of the tenant, enter the rental unit as reasonably necessary for inspection, maintenance and safekeeping.
(3) Unless otherwise agreed, (a) use of the dwelling unit by the tenant for any other purpose than as his abode, or (b) non-use of the dwelling unit shall constitute a breach of a rule under Section 5904 and entitles the landlord to proceed as specified elsewhere in this Chapter.
(4) If the tenant wrongfully quits the rental unit and unequivocally indicates by words or deeds his intention not to resume tenancy, he shall be liable for the lesser of the following for such abandonment:
(a) the entire rent due for the remainder of the term, and reasonable renovation expenses other than for normal wear and tear incurred in preparing the apartment for a new tenant;
(b) all rent accrued during the period reasonably necessary to re-rent the premises at a fair rental, plus the difference between such fair rental and the rent agreed to in the prior rental agreement, plus a reasonable commission for the renting of the premises. This subsection shall apply if less than (a), notwithstanding that the landlord did not re-rent the premises.
§ 5909. Termination of tenancy, holdover remedies
(1) Except as otherwise provided in this Code, whenever either party to a rental agreement rightfully elects to terminate, the duties of each party under the rental agreement shall cease and determine, and the parties shall thereupon discharge any remaining obligations as soon as practicable.
(2) Upon thirty (30) days' written notice, the tenant may terminate the tenancy whenever a change in location of the tenant's employment by the tenant's present employer requires a change in the location of his residence, or the death or serious illness of the tenant, or a member of his immediate family, requires the tenant to change his residence on a permanent basis. The thirty (30) day period shall begin or the first day of the month following the day notice is actually given.
(3) Whenever the term of the rental agreement expires, as provided herein, or by the exercise by the landlord of a right to terminate given him under any section of this Code, if the tenant continues in possession of the premises after the date of termination without the landlord's consent, such tenant shall pay to the landlord a sum not to exceed twice the monthly rental under the previous agreement, computed and prorated on a daily basis, for each day he remains in possession for any period. In addition, the holdover tenant shall be responsible for any further losses incurred by the landlord as determined by a hearing before a Justice of the Peace.
§ 5910. Remedy for failure to pay rent and for destruction of premises
(1) For any violation of the rental agreement and/or this Code by either party, the injured party shall have a right to maintain a cause of action in any court of competent civil jurisdiction.
(2) In satisfaction of any judgment obtained by the landlord for rental arrearage or unlawful destruction of property, the wages of the judgment debtor may be attached in the manner provided by law.
(1) If a rental agreement requires the tenant to provide any deposit to the landlord to be held for the term of the rental agreement, or any part thereof, said deposit shall be considered a security deposit.
(2) Security deposits shall be placed in an escrow bank account by the landlord and shall not be used in the operation of any business by the landlord. Said security deposit shall be held and administered for the benefit of the tenant, and the tenant's claim to such money shall be prior to that of any creditor of the landlord, including but not limited to a trustee in bankruptcy, even if such money is commingled.
(3) The purpose of the security deposit shall be: (a) to reimburse the landlord for actual damages, above normal wear and tear which can be corrected by painting and ordinary cleaning, caused to the premises by the tenant; (b) to pay the landlord for all rental arrearage due under the rental agreement, including rental due for premature termination of the rental agreement by the tenant; and (c) to reimburse the landlord for all reasonable expenses incurred in renovating and reletting the premises caused by the premature termination of the rental agreement by the tenant, which include termination pursuant to § 5909 (2); provided, however, reimbursement caused by termination pursuant to § 5909 (2) shall not exceed one month's rent.
(4) Within fifteen (15) days after the termination or expiration of any rental agreement, the landlord shall provide the tenant with an itemized list of damages to the premises and the estimated cost of repair of each, and shall tender payment for the difference between the security deposit, and the cost of repair of damages to the premises. Acceptance of this tender by the tenant shall constitute agreement on the damages as specified by the landlord.
(5) Failure by the landlord to provide a list of damages and tender the remainder of the tenant's deposit within fifteen (15) days shall constitute agreement by the landlord that no damages are due and he shall immediately remit to the tenant the full amount of the security deposit. Failure to do so within thirty (30) days from the expiration of termination of the rental agreement
shall entitle the tenant to double the amount of the security deposit. Failure by the landlord to pay a judgment for the security deposit within twenty (20) days, if not appealed, shall be considered as a contempt of court and shall subject the said landlord to penalties as prescribed by law.
(6) All communications required in this Section shall be directed to the landlord at the address specified in the rental agreement and to the tenant at an address provided in writing by the tenant at or prior to the termination of the rental agreement. Failure to provide such address shall relieve the landlord of his responsibility to give a notice as provided in subsection (4) and his liability for double the amount of the security deposit as provided in subsection (5); but landlord shall continue to be liable to the tenant for any unused portion of the security deposit provided the tenant shall make a claim in writing to the landlord within one (1) year from the termination of the rental agreement.
§ 5912. Sublease and assignments
(1) Unless otherwise agreed in writing, the tenant may sublet his premises or assign the rental agreement to another.
(2) The rental agreement may restrict the tenant's right to assign the rental agreement in any manner. The tenant's right to sublease the premises may be conditioned on obtaining the landlord's consent, which shall not be unreasonably withheld. No consideration of race, creed, sex, marital status, religion, political opinion or affiliation, or national origin may be relied on by the landlord as reasonable grounds for rejection. The fact that the tenant is a welfare recipient shall not be grounds for rejection. In any proceeding in which the reasonableness of the landlord's rejection shall be in issue, the burden of showing reasonableness shall be on the landlord.
(3) In the event of discrimination under this Section, the tenant may recover damages sustained as a result of the landlord's action including, but not limited to, reasonable expenditures necessary to obtain adequate substitute housing.
§ 5913. Access
(1) The tenant shall not unreasonably withhold his consent to the landlord to enter into the rental unit in order to inspect the premises, make necessary repairs, decorations, alterations, or improvements, supply services as agreed, or exhibit the rental unit to prospective purchasers, mortgagees, or tenants.
(2) The landlord shall not abuse this right of access nor use it to harass the tenant. Insofar as it is practicable to do so, the landlord shall give the tenant at least two (2) days notice of his intent to enter, except for emergencies and repairs requested by the tenant, and shall enter only between 8:00 a.m. and 9:00 p.m., after announcing his presence and being admitted, except in the case of an emergency.
§ 5914. Landlord and tenant remedies for abuse and access
(1) The tenant shall be liable to the landlord for any harm proximately caused by the tenant's unreasonable refusal to allow access.
(2) The landlord shall be liable to the tenant for any theft, casualty, or other harm proximately resulting from an entry into the rental unit by him or with his permission or license:
(a) When the tenant is absent and has not specifically consented to the entry.
(b) Without the tenant's actual consent when he is present and able to consent.
(c) In any other case, when the harm suffered by the tenant is due to the landlord's negligence.
(3) Repeated demands for unreasonable entry, or any entry which is unreasonable and not consented to by the tenant, may be treated by the tenant as grounds for termination of the rental agreement. Any court of competent jurisdiction may issue an injunction against this manner of harassment on behalf of one or more tenants.
(4) Every agreement or understanding between a landlord
and a tenant which purports to exempt the landlord from any liability imposed by this Section, except consent to a particular entry, shall be null and void.
§ 5915. Landlord's waiver of liability forbidden
Every agreement between landlord and tenant in or in connection with a rental agreement exempting the landlord from liability for damages for injuries to persons or property caused by or resulting from the acts of omissions of the landlord, his agent, servants or employees, in the operation or maintenance of the rental unit or the property of which it is a part shall be unenforceable.
§ 5916. Retaliatory evictions and rent increases prohibited
(1) Notwithstanding that the tenant has no written rental agreement or that it has expired, so long as the tenant continues to tender the usual rent to the landlord or proceeds to tender receipts for rent lawfully withheld under Chapter 63 of this code, (a) no action or proceeding to recover possession of the rental unit may be maintained against the tenant, nor (b) shall the landlord otherwise case the tenant to quit the rental unit involuntarily, nor (c) demand an increase in rent from the tenant, nor (d) decrease the services to which the tenant has been entitled after:
(i) The tenant has complained in good faith of conditions in or affecting his rental unit which constitute a violation of a building, housing, sanitary, or other code or ordinance, to a body charged with the enforcement of such code or ordinance; or
(ii) Such a body has filed a notice or complaint of such violation; or
() The tenant has in good faith requested repairs as provided herein.
(2) Within ninety (90) days after any complaints, as enumerated in subparagraphs (i), (ii) or (iii) above, if the landlord institutes any of the affirmative actions set forth in paragraph (1), (a), (b), (c) or (d), such conduct shall be presumed to have been in violation of this Section.
(3) Notwithstanding subsections (1) or (2), the landlord may recover possession of the rental unit if:
(a) The tenant is committing waste, or a nuisance, or is using the rental unit for an illegal purpose or for purposes in violation of his rental agreement; or
(b) The landlord seeks in good faith to recover possession of the rental unit for immediate use as his own abode; or
(c) The landlord seeks in good faith to recover possession of the rental unit for the purpose of substantially altering, remodeling, or demolishing the premises; or
(d) The landlord seeks in good faith to recover possession of the rental unit for the purpose of immediately terminating for at least six (6) months use of the rental unit as a rental unit; or
(e) The complaint or request of subsection (1) relates only to a condition or conditions caused by the lack of ordinary care by the tenant or another person in his household or on the premise with his consent; or
() The rental unit and other property and facilities used by or affecting the use and enjoyment of the tenant were on the date of filing of such complaint or request in full compliance with all codes, statutes, and ordinances; or
(a) The landlord has in good faith contracted to sell the property, and the contract of sale contains a representation by the purchaser corresponding to (b), (c), or (d) above; or
(b) The landlord is seeking to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant previous to the complaint or request of subsection (1).
(4) Any tenant from whom possession has been recovered or who has been otherwise involuntarily dispossessed, in violation of this Section, shall be entitled to recover three (3) months' rent or treble the damages sustained by him, whichever is greater, and the cost of the suit.
(5) Notwithstanding subsection (1), the landlord may increase the rent if
(a) The rental unit and other property and facilities used by and affecting the use and enjoyment of the tenant were on the date of filing of such complaint or request of subsection (1) in full compliance with all codes, statutes, and ordinances; or
(b) The landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint or request, not less than four (4) months prior to the demand for an increase in rent; and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs; or
(c) The landlord has completed a substantial capital improvement of the rental unit or the property of which it is a part not less than four (4) months prior to the demand for increased rent, and the 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, prorated among the rental units benefited by the improvement; or
(d) The complaint or request of subsection (1) relates only to a condition or conditions caused by the want of due care by the tenant or another person of his household or on the premises with his consent; or
(e) 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, or he can establish that the increase in rent is not directed at the particular tenant but is uniform.
§ 5917. Unlawful ouster or exclusion of tenant
If removed from the premises or excluded therefrom by the landlord or his agent, except under color of a valid court order so authorizing, the tenant may recover possession or terminate the rental agreement and, in either case, recover treble damages sustained by him, and the cost of the suit.
CHAPTER 61. SUMMARY PROCEEDING FOR POSSESSION
§ 6101. Jurisdiction and venue
A summary proceeding to recover the possession of premises may be maintained in a Justice of the Peace Court in the County where the property is located.
§ 6102. Grounds for summary proceeding
Unless otherwise agreed in written rental agreement, a special proceeding may be maintained under this part on one or more of the following grounds:
(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 breached a lawful obligation relating to his use of the premises.
(4) The defendant, an employee, servant, or agent of the petitioner, holds over for more than fifteen (15) days after dismissal when the housing supplied by petitioner was a part of the compensation for labor or services.
(5) The defendant, who purchased the rental unit or the property of which it is a part, holds over for more than five (5) days after the property has been duly sold upon the foreclosure of a mortgage, and the title under the mortgage has been duly perfected.
(6) The defendant has wrongfully ousted the petitioner, who is rightful tenant of the rental unit.
(7) The tenant refuses to yield possession of 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.
§ 6103. Who may maintain proceeding The proceeding may be initiated by:
(3) the tenant who has been wrongfully put out or kept out;
(4) the next tenant of the premises, whose term has begun.
§ 6104. Commencement of action and notice of complaint
(1) The proceeding shall be commenced by the filing with the court of a complaint for possession.
(2) The court shall cause service of the complaint on the defendant along with a notice stating the time and place of the hearing, and further stating that if the defendant shall fail at such time to appear and defend against such complaint, he may be precluded from afterwards raising any defense or a claim based on such defense in any other proceeding or action.
§ 6105. Service and filing of notice
(1) The notice of hearing and the complaint shall be served at least five (5) days and not more than twelve (12) days before the time at which the complaint is to be heard.
(2) 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 three (3) days after service. If service has been made by mail, the return, signed or unsigned, receipt will be proof of such service.
§ 6106. Manner of service
If service cannot be made in such manner, it shall be made by leaving a copy of the notice and complaint personally with a person of suitable age and discretion who resides or is employed in the rental unit.
If no such person can be found after a reasonable effort, service may be made by:
(a) affixing a copy of the notice and complaint upon a conspicious part of the rental unit; and
(b) within one day thereafter, if defendant is a natural person, sending by certified or registered mail an additional copy of each document to the rental unit and to any other address known to the person seeking possession as reasonably chosen to give actual notice to defendant; and
(c) if defendant is a corporation or other unnatural person by sending by certified mail within one day after affixation additional copies of each document to the rental unit and to the principal place of business of such defendant, if known, or to any other place known to the party seeking possession as reasonably chosen to effect actual notice.
§ 6107. Contents of complaint generally The complaint shall:
(1) State the interest of the plaintiff in the rental unit from which removal is sought.
(2) State the defendant's interest in the rental unit and his relationship to the petitioner with regard thereto.
(3) Describe the rental unit from which removal is sought.
(4) State the facts upon which this proceeding is based.
(5) State the relief sought. The relief may include a judgment for rent due if the notice of complaint contains a conspicuous notice that such demand has been made.
§ 6108. Additional contents of certain complaints
If possession of the rental unit is sought on the grounds that the defendant has violated or failed to observe a lawful obligation in relation to his use and enjoyment of the rental unit, the complaint shall in addition to the requirements of the foregoing Section:
(1) Set forth the rule, condition, or the like allegedly breached, together with the date and manner in which the rule or the like was made known to the defendant.
(2) Allege with specificity the facts constituting a breach of the rule, and that notice or warning as required by law was given to the defendant.
(3) Set forth the facts constituting a continued or recurrent violation of the rule.
(4) Set forth the purpose served by the rule breached, and that the rule promotes the convenience, safety, or welfare of other tenants of the property, or preserves the property and appurtenances thereto from abusive use by tenants or others, or seeks to distribute services and facilities held out for common use in an equitable manner.
(5) Allege that the rule, if not a part of the rental agreement or any understanding of the landlord and tenant at the time of the formation of the rental agreement, does not work a substantial modification of the defendant's bargain; or, if it does, that the defendant consented knowingly in writing to the rule.
(6) If the rule breached is for the benefit of other tenants only, allege that all the tenants for whose benefit the rule purports to be able, or if more than three, any three of them, are in favor of the rule.
At the time when the petition is to be heard, the defendant, or any person in possession or claiming possession of the rental unit, may answer, orally or in writing. If the answer is oral the
substance thereof shall be endorsed on the complaint. The answer may contain any legal or equitable defense, or counterclaim.
Where triable issues of fact are raised, they shall be tried by the court. At the time when issue is joined, the court, in its discretion at the application of either party and upon proof to its satisfaction by affidavit or orally that an adjournment is necessary to enable the applicant to procure necessary witnessess or evidence, or by consent of all the parties who appear, may adjourn the trial of issue, but not more than ten (10) days, except by consent of all parties.
(1) The Court shall direct that a final judgment be entered determining the rights of the parties. The judgment shall award to the successful party the costs of the special proceeding.
(2) The judgment shall not bar an action, proceeding or counterclaim, commenced or interposed within sixty (60) days of entry of judgment, for affirmative equitable relief which was not sought by counterclaim in the proceeding because of the limited jurisdiction of the court.
(3) If the proceeding is founded upon an allegation of forcible entry or forcible holding out, the court may award to the successful party a fixed sum as damages, in addition to his costs.
No judgment for the plaintiff shall be entered unless the court is satisfied, upon competent proof, that the defendant has received actual notice of the proceeding, or, having abandoned the rental unit, cannot be found within the jurisdiction of the court after the exercise of reasonable diligence.
§ 6113. Stay of proceedings on appeal
If either party shall feel aggrieved by the judgment rendered in such proceeding, he may request in writing within five (5) days after judgment a trial de novo before a special court comprised of
three (3) other Justice of the Peace, which shall sit in the same court and render final judgment, by majority vote, on the original complaint within ten (10) days after said request for a trial de novo. No such request shall stay proceedings on such judgment unless the aggrieved party, at the time of making such requests, shall execute and file with the court an undertaking to the successful party, with such bond or other assurances as may be required by the court, to the effect that the aggrieved party will pay all costs of such proceedings which may be awarded against him, and abide the order of the court therein, and pay all damages including rent justly accruing during the pendency of such proceedings. All further proceedings in execution of the trial court judgment shall thereupon be stayed.
§ 6114. Execution of judgment
(I) Upon rendering a final judgment for plaintiff, the court shall issue a warrant directed to the constable or the sheriff of the county in which the property is located, describing the property and commanding the officer to remove all persons and put the plaintiff into full possession.
(2) The officer to whom the warrant is directed and delivered shall give at least twenty-four (24) hours' notice to the person or persons to be removed and shall execute it between the hours of sunrise and sunset.
(3) The issuing of a warrant for the removal of a tenant concels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant. Plaintiff may recover by action any sum of money which was payable at the time when the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any provision for payment of rent.
(4) If prior to or upon the tenant's removal from said premises, the tenant fails to remove his property and possessions, the landlord shall have the right to remove and store same at tenant's expense for up to a period of thirty (30) days. At the end of said thirty (30) day period if the tenant has failed to claim said property and to reimburse the landlord for the expense of removal and storage in a reasonable amount, said property and possessions
shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant. Nothing in this subsection shall be construed to prevent the landlord from suing for both back rent and eviction at the same hearing.
(5) Nothing in subsection (3) above shall prevent the landlord from making a claim for rent due from the tenant under the provisions of the lease. The landlord shall have the duty of exercising diligence in his efforts to re-rent the premises. The landlord shall have the burden of showing the exercise of such diligence. The landlord shall have the right to sue for both back rent and eviction at the same hearing.
§ 6115. Stay of proceeding by tenant
When a final judgment is rendered in favor of plaintiff in a proceeding brought against a tenant for failure to pay rent, and the default arose out of a good faith dispute, the tenant may stay all proceedings on such judgment by paying all rent due at the date of the judgment and the costs of the proceeding, or by filing with the court his undertaking to the plaintiff, with such assurances as the court shall require, to the effect that he will pay such rent and costs within ten (10) days. At the expiration of said period, the court shall issue a warrant of execution unless satisfactory proof of payment is produced by the tenant.
CHAPTER 63. TENANT'S RECEIVERSHIP
§ 6301. Petition Receivership: grounds, notice, and jurisdiction
Any tenant or group of tenants may petition for the establishment of a receivership in a Justice of the Peace Court upon the grounds that there has existed for five (5) days or more after notice to the landlord:
(1) if the rental agreement or any state or local statute, code, regulation or ordinance, places a duty upon the landlord to so provide, a lack of heat, or of running water, or of light, or of electricity, or of adequate sewage facilities;
(2) any other conditions imminently dangerous to the life, health, or safety of the tenant.
§ 6302. Necessary parties defendant
(1) Petitioners shall join as defendants:
(a) all parties duly disclosed to any of them in accordance with Section 5106; and
(b) all parties whose interest in the property is (i) a matter of public record and (ii) capable of being protected in this proceeding.
(2) Petitioner shall not be prejudiced by a failure to join any other interested parties.
It shall be sufficient defense to this proceeding, if any defendant of record establishes that:
(I) the condition or conditions described in the petition do not exist at the time of trial; or
(2) the condition or conditions alleged in the petition have been caused by the willful or grossly negligent acts of one or more of the petitioning tenants or members of his or their families or by other persons on the premises with his or their consent; or
(3) such condition or conditions would have been corrected, were it not for the refusal by any petitioner to allow reasonable access.
§ 6304. Stay of judgment by defendant
(1) If, after a trial, the court shall determine that the petition should be granted, the court shall immediately enter judgment thereon and appoint a receiver as authorized herein; provided, however, prior to the entry to judgment and appointment of a receiver, the owner of any mortgagee or lienor of record or other person having an interest in the property may apply to the court to be permitted to remove or remedy the conditions specified in the petition. If such person demonstrates the ability to perform promptly the necessary work and posts security for the performance thereof within the time, and in the amount and
manner, deemed necessary by the court, then the court may stay judgment and issue an order permitting such person to perform the work within a time fixed by the court and requiring such person to report to the court periodically on the progress of the work. The court shall retain jurisdiction over the matter until the work is completed.
(2) If, after the issuance of an order under the foregoing provision but before the time fixed in such order for the completion of the work prescribed therein, there is reason to believe that the work will not be completed pursuant to the court's order or that the person permitted to do the same is not proceeding with due diligence, the court or the petitioners, upon notice to all parties to the proceeding, may move that a hearing be held to determine whether judgment should be rendered immediately as provided in the following subsection.
(3) (a) If, upon a hearing authorized in the preceding subsection, the court shall determine that such party is not proceeding with due diligence, or upon the actual failure of such person to complete the work in accordance with the provisions of the order, the court shall appoint a receiver as authorized herein.
(b) Such judgment shall direct the receiver to apply the security posted to executing the powers and duties as described herein.
(c) In the event that the amount of such security should be insufficient to accomplish the above objectives, such judgment shall direct the receiver to collect the rents, profits, and issues, to the extent of the deficiency. In the event that the security should exceed the amount necessary to accomplish the above objectives, such judgment shall direct the receiver to return the excess to the person posting the security.
§ 6305. Appointment of a receiver
The receiver shall be the Division of Consumer Affairs of the State of Delaware or its successor agency.
(1) Upon its appointment, the Receiver must make within fifteen (15) days an independent finding whether there is proper cause shown for the need for rent to be paid to it and for the
employment of a private contractor to correct the condition complained of in § 6302 and found by the Court to exist.
(2) If the receiver shall make such a finding, it shall file a copy of the finding with the Recorder of Deeds of the county where the property lies and it shall be a lien on that property where the violation complained of exists.
(3) Upon completion of the aforesaid contractual work and full payment of the contractor, the Receiver shall file a certification of such with the Recorder of Deeds of the appropriate county, and this filing shall release the aforesaid lien.
(4) The Receiver shall forthwith give notice to all lien-holders of record.
(5) If the Receiver shall make a finding at such time or any other time that for any reason the appointment of a Receiver is not appropriate, it shall be discharged upon notification of the Court and all interested parties, and shall make legal distribution of any funds in its provisions.
§ 6306. Powers and duties of the receiver
(1) The receiver shall have all the powers and duties accorded a receiver foreclosing a mortgage on real property and all other powers and duties deemed necessary by the court. Such powers and duties shall include, but are not necessarily limited to, collecting and using all rents and profits of the property, prior to and despite any assignment of rent, for the purposes of:
(a) correcting the condition or conditions alleged in the petition;
(b) materially complying with all applicable provisions of any state or local statute, code, regulation or ordinance governing the maintenance, construction, use or appearances of the building and surrounding grounds;
(c) paying all expenses reasonably necessary to the proper operation and management of the property including insurance, mortgage payments, taxes and assessments, and fees for the services of the receiver and any agent he should hire;
(d) compensating the tenants for whatever deprivation of their rental agreement rights resulted from the condition or conditions alleged in the petition; and
(e) paying the costs of the receivership proceeding. § 6307. Discharge of the receiver
(1) In addition to those situations described in § 6305, the Receiver may also be discharged when:
(a) the condition or conditions alleged in the petition have been remedied;
(b) the property materially complies with all applicable provisions of any state or local statute, code, regulation or ordinance governing the maintenance, construction, use, or appearance of the building and the surrounding grounds;
(c) the costs of the above work and any other costs as authorized herein have been paid or reimbursed from the rents; and profits of the property; and
(d) the surplus money, if any, has been paid over to the owner.
(2) Upon clauses (a) and (b) of the preceding subsection being satisfied, the owner, mortgagee, or any lienor may apply for the discharge of the receiver after paying to the latter all monies expended by him and all other costs which have not been paid or reimbursed from the rent and profits of the property.
(3) If the court determines that future profits of the property will not cover the costs of satisfying clauses (a) and (b) subsection (1), the court may discharge the receiver and order such action as would be appropriate in the situation, including but not limited to terminating the rental agreement, and order the vacation of the building within a specified time. In no case shall the court permit repairs which cannot be paid out of the future profits of the property.
CHAPTER 65. LIMITATIONS ON OTHER PROCEEDINGS;
PENALTIES; SEVERABILITY
§ 6501. Action for waste
(1) It shall be a complete defense to an action, suit, or proceeding for waste if the tenant allege and establish that he notified the landlord a reasonable time in advance of the repair, alteration, or replacement and the repair, alteration, or replacement:
(a) is one which a prudent owner of an estate in fee simple absolute of the affected property would be likely to make in view of the conditions existing on or in the neighborhood of the affected property; or
(b) has not reduced the market value of the reversion or other interest of the plaintiff.
(2) The court shall deny a petition for an injunction against a tenant who contemplates any repair, alteration, or replacement if the tenant:
(a) alleges and establish that the proposed repair, alteration, or replacement is one which a prudent owner of the fee of the property would be likely to make in view of the conditions existing on or in the neighborhood of the affected property; or
(b) alleges and establishes that the proposed repair, alteration, or replacement will not reduce the market value of the reversion or other interest of the petitioner; and
(c) having satisfied the court as to either of the above, upon demand by the petitioner, posts such security as the court shall direct to protect the petitioner against a failure to complete the proposed work, and against any responsibility for expenditures incident to the making of such proposed repairs, alterations, or replacements.
(3) This Section shall not be interpreted to bar an action for damages
for breach of a written rental agreement nor an action or summary proceeding based on breach of a written rental agreement, nor an injunction against the breach of a condition contained in a written rental agreement.
No provision in a rental agreement providing for the recovery of attorney's fees by either party in any suit, action, or proceeding arising from the tenancy shall be enforceable.
§ 6503. Landlord liens, distress for rent
(1) The right of the landlord for distress for rent is hereby abolished, except as otherwise provided herein.
(0) Unless perfected before the effective date of this code, no lien on behalf of the landlord in the personal property and possessions of the tenant shall be enforceable, except as otherwise provided herein.
§ 6504. Confession of judgment
A provision of a written rental agreement authorizing a person other than the tenant to confess judgment against the tenant is void and unenforceable.
CHAPTER 67. DISTRESS FOR RENT
§ 6701. Action at law; jurisdiction; case in which distress lies
(1) Distress for rent is hereby abolished except pursuant to a rental agreement for a commercial unit and in that event it shall be an action at law which shall be brought as provided herein.
(2) The several courts of the Justices of the Peace shall have original jurisdiction in all cases of distress for unpaid rent regardless of the amount of rent notwithstanding any other law to the contrary.
(0) A distress shall lie for any unpaid rent due either in money or in a quantity of any tangible items, goods or produce pursuant to any rental agreement of a commercial unit.
§ 6702. Form of claims; contents; costs
(1) The claim for distress shall name the tenant as defendant and shall set forth the name and address of the landlord, the name and address of the tenant, and the fact as to any assignment of the rental agreement, the premises leased, the date of the rental agreement, the term of the rental agreement, the rent required to be paid by the tenant and the amount of rent in arrears. The claim for distress shall be made under oath of affirmation by the plaintiff.
(2) The claim shall be filed in a court of the Justices of the Peace located in the County wherein the commercial unit or a portion thereof is situated.
(3) The costs in this action shall include the cost of the sale.
§ 6703. Order of distress; service of claim and order; return;
amended levy and inventory; duration of levy
(1) Upon the filing of an action of distress the court shall promptly issue an order to a constable or sheriff of that county directing that all goods on the leased premises be levied upon. A copy of the claim of distress and order of levy shall be served upon each tenant on the leased premises, as provided herein. The order shall also set forth the time and place where the defendant may appear and make answer to the allegations in the claim.
(0) The levy may be made within the hours of 8:00 a.m. to 8:00 p.m.
(1) The officer making the levy shall then proceed to make an inventory of each article of goods distrained upon, and shall deliver to each tenant found on the premises, or if not so found, leave affixed to the premises, a copy of the inventory as provided herein.
(2) The officer serving the order shall make a return of his action to the court, including the date and time thereof.
(3) A levy for distress shall not remain in force for more than sixty (60) days and if the goods distrained are not sold within that period they shall be discharged from the levy.
§ 6704. Entry; levied goods in custody of courts
(1) Except as hereinafter provided goods levied upon by the constable or sheriff shall remain on the leased premises in the custody of the court unless released as hereinafter provided.
(2) Upon application to the court by either party, the court may allow the removal and/or sale, in whole or in part, of the levied goods upon such terms and conditions as the court deems necessary for the protection of the parties and to avoid irreparable harm, including the posting of a bond by the tenant for the fair market value of the goods or other protective measures, including the appointment of a receiver, or the depositing of sale proceeds with the court or a specified depository.
(3) Unless otherwise provided in accordance with subsection (2) or Section 6707, the plaintiff in an action of distress shall have a special property interest in the goods distrained until they are returned to the defendant or sold by the court, so that he may take the goods wherever found, and recover damages for carrying away or injuring them.
§ 6705. Protective measures upon a showing that a tenant may abscond
(I) Upon petition of the plaintiff in distress and a showing under oath or affirmation of a need for protective measures, because the tenant may abscond or remove and conceal his goods, the court may take any or all of the following protective measures:
(a) The constable or sheriff shall be directed to make the levy forthwith and at any time;
(b) The constable or sheriff can take actual possession of the goods levied upon and remove same from the leased premises to such place as the court may direct pending the release or sale of the goods. Removal of the goods may, if the court deems it necessary, be conditioned on the filing of a bond by the plaintiff in such amount and in such form as the court may determine but in an amount not less than the fair market value of the goods removed. The expense of removal of any goods from the leased
premises to any other place for storage pending sale shall be included as part of the costs of distress.
(c) The court may order the levying officer to enter the premises forcibly if entry cannot otherwise be gained.
§ 6706. Procedure in the event of a forcible entry
Where entry is gained forcibly and if no tenant is found on the premises, a copy of the claim and order shall be affixed on a prominent place on the interior of the leased premises. The constable or sheriff shall then proceed to make an inventory of each article of goods distrained and leave affixed to the premises a copy of the inventory and shall attempt to contact the tenant if his whereabouts are known and leave the premises locked and as safe and secure as possible. The constable or sheriff serving the order shall make a return of his action to the court including the date, time and manner of the forcible entry.
§ 6707. Release of distrained property upon filing of bond
Upon the filing of a bond with surety with the court where the distress action is pending, the court may release from the levy and/or return the property to the tenant. The bond shall be in an amount not exceeding the fair market value of the goods levied as determined by the court or the amount of rent in arrears plus two months rent, whichever is less.
§ 6708. Answer to claim; hearing; final order of sale
(1) The defendant in an action of distress may file an answer to the action setting forth any defense he may have to the action. The court at the hearing which shall be held within fifteen (15) days after the levy shall have the power to determine and decide all issues raised, and is empowered to issue an order for the sale of the goods and to make such orders in connection therewith as may be required.
(2) In any final order for the sale of goods distrained, the court shall have power to increase the amount of rent claimed to an amount equal to the sum of the plaintiff's original claim plus rent accruing after the filing of the claim for distress up to the day of sale on which rent may fall due.
(3) If the tenant named as defendant in an action for distress shall fail to file an answer to the petition for distress and/or appear at the time and place set for the hearing, the court may upon motion of the plaintiff issue an order for the sale of the goods distrained.
§ 6709. Public sale of property distrained; notice of sale
After the expiration of ten (10) days from the day of the issuance of a final order of sale by the court, the officer may sell the property, or so much thereof as is necessary to satisfy the rent and all costs, at public vendue, to the highest and best bidder, or bidders, first giving at least six (6) days notice of the sale by advertisement posted in at least five public places in the County. All goods neither sold or retained by the landlord shall be returned to the defendant.
Any constable or sheriff or other officer of the Court acting in good faith pursuant to an order of the court as provided herein shall not incur civil or criminal liability for his actions in carrying out said order except for any damage incurred as a result of his gross negligence or willful misconduct.
CHAPTER 69. MISCELLANEOUS PROVISIONS
§ 6901. Preference of rent in cases of execution
(1) Liability of goods levied upon for one year's rent.
If goods, chattels, or crops of a tenant being upon premises held by him by demise under a rent of money, are seized by virtue of any process of execution, attachment, of sequestration, the goods and chattels shall be liable for one year's rent of the premises, in arrear, or growing due, at the time of the seizure, in preference to such process; accordingly the landlord shall be paid such rent, not exceeding one year's rent, out of the proceeds of the sale of such goods and chattels, before anything shall be applicable to such process.
sequestration, shall at least ten (10) days before such sale, give written notice of the time and place thereof to landlord, if residing in the county, and if not, to any known agent of the landlord in the county.
§ 6902. Taxes paid by tenant; set-off against rent; recovery from owner
Any tax laid upon lands, or tenements, according to law, which is paid by or levied from the tenant of such lands, or tenements, or a person occupying and having charge of same, shall be a set-off against the rent or other demand of the owner for the use, or profits of such premises. If there is no rent, or other demand sufficient to cover the sum so paid, or levied, the tenant, or other person may demand and recover the same from the owner, with costs. This provision shall not affect any contract between the landlord and his tenant.
§ 6903. Refusal to rent because of children in family, increase of rent; penalty
(I)
No person, being an owner or agent of any real estate, house, apartment or other premises, shall refuse or decline to rent, sub-rent, or cancel any existing lease to or of any tenant or any person because the tenant or person for reasons of race, creed, color, sex, national origin, age, occupation or has a child or children in his family.
(2) No person shall demand or receive a greater sum as rent for the use and occupancy of any premises because the person renting or desiring to rent the premises is of a particular race, creed, color, sex, national origin, age, occupation or has a child or children in his or her family.
(3) In the event of discrimination under this Section, the tenent may recover damages sustained as a result of the landlord's action, including but not limited to reasonable expenditures necessary to obtain adequate substitute housing.
§ 6904. Tenant may obtain summary of Landlord-Tenant Code
landlord to the tenant with a release at the tenant's expense. In the event that the tenant has not complied with a lease, ignorance of the law may be pleaded by the tenant in any court of law or equity, and shall be a valid defense.
Section 2. If any provision or clause of this code or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the code which can be given effect without the invalid provisions or application, and to this end the provisions of this code are declared to be severable.
Section 3. Upon its enactment into law, the provisions of this code shall apply to all transactions (including renewals and extensions of pre-existing rental agreements) entered into thereafter; provided, however, that any rights, obligations or remedies not expressly dependent by the provisions of this code upon the terms of a rental agreement shall become effective immediately. This Act shall become effective upon the expiration of ninety days after its approval by the Governor.
Section 4. Amend Subchapter II, Chapter 51, Title 25 of the Delaware Code by re-designating present § 5115 to become new § 7001, and each consecutive section shall be re-designated successively: Sections 5116, 5117, 5118, 5119, 5120, 5121, 5122, 5123, 5124, 5125, 5126, 5127, 5128, and 5129 shall become Sections 7002, 7003, 7004, 7005, 7006, 7007, 7008, 7009, 7010, 7011, 7012, 7013, and 7014.