Summary Possession

Del. Code tit. 25, ch. 57
in effect

Del. Code tit. 25, § 5701 Jurisdiction and venue.

An action for summary possession in accordance with § 5702 of this title shall be maintained in the Justice of the Peace Court which hears civil cases in the county in which the premises or commercial rental unit is located. In the event that more than 1 Justice of the Peace Court in a county hears civil cases, then an action shall be maintained in the Justice of the Peace Court that possesses territorial jurisdiction over the area in which the premises or commercial unit is located. For purposes of this chapter, the term “rental agreement” shall include a lease for a commercial rental unit.

Del. Code tit. 25, § 5701A Establishing territorial jurisdiction.

In any county in which more than 1 Justice of the Peace Court location has been designated to hear civil cases, each court location shall have a geographical area assigned to it for the purpose of establishing jurisdiction over actions for summary possession. Each court location shall be located within its given territory. Pursuant to § 5701 of this title, any action for summary possession involving a residential or commercial unit within a given territory shall be maintained at the Justice of the Peace Court which has jurisdiction over the given territory. Designation of the boundaries between territories shall be accomplished by court rule. In so doing, the Court may take into account the resources of each Justice of the Peace Court location; how these resources may be utilized best in serving the public good; convenience to the public; and population and demographic information, both current and projected.

Del. Code tit. 25, § 5701B Civil jurisdiction; bifurcated claims.

Parties aggrieved in matters arising from a commercial lease in which summary possession is sought may split or bifurcate the cause of action and file an action for summary possession and also file a plenary action between the same parties over the same lease in another court. Such plenary actions must be commenced no later than 6 months after a final judgment is entered in the action for summary possession.

Del. Code tit. 25, § 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 housing was supplied to the tenant employee by the landlord as part of the compensation for labor or services and 1 of the following has occurred: a. The tenant employee’s employment has been terminated and the tenant employee holds over for more than 30 days after dismissal. b. The tenant employee’s employment has been terminated for cause and the tenant-employee holds over for more than 15 days after dismissal. (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; (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; or (12) The tenant who is the sole tenant under the rental agreement has died and become the deceased sole tenant under the residential rental agreement.

Del. Code tit. 25, § 5702A Residential eviction diversion program.

(a) (1) Not later than April 27, 2024, the Justice of the Peace Court or the Court’s designee shall establish a residential eviction diversion program to facilitate post-filing eviction dispute resolution between landlords and tenants, which must include all of the following: a. An initial mediation conference between a landlord and tenant to facilitate an agreement for asserted rental agreement violations or nonpayment of rent. b. A designated United States Housing and Urban Development certified housing counselor or other representative approved by the Justice of the Peace Court or the Court’s designee for the tenant that does all of the following: 1. Participates in the initial mediation conference. 2. Engages with the tenant before the initial mediation conference to educate and discuss available resources. c. Any other dispute resolution methods established under the residential eviction diversion program. (2) The Justice of the Peace Court or the Court’s designee may limit or otherwise modify the scope of services provided by the residential eviction diversion program to ensure that the cost of the program does not exceed the funding allocated to the program and to ensure that the number of staff required to run the program does not exceed the number of staff available. (b) In designing and implementing the residential eviction diversion program, the Justice of the Peace Court or the Court’s designee may be guided by the Residential Mortgage Foreclosure Mediation Program established by the Superior Court under Superior Court Administrative Directive 2013-2 and any subsequent changes made by Superior Court. (c) (1) Except as provided under paragraph (c)(2) of this section, after a landlord has filed an action for possession under this chapter, the case is to be scheduled for mediation. Mediation is to be scheduled during the period between filing and trial. A trial may not commence until the landlord has engaged in mediation, except in cases where a tenant fails to engage in mediation within 15 calendar days after service of process. Mediation must be scheduled and completed at least 48 hours before the trial date. A tenant’s failure to engage in or complete mediation may not delay the scheduling or commencement of trial. (2) A landlord may not be required to participate in the residential eviction diversion program in a proceeding under §§ 5115 or 5513(b) or (c) of this title, or where the landlord alleges and by substantial evidence demonstrates to the Court that a tenant has caused or threatens to cause substantial or irreparable harm to landlord’s or other tenant’s person or property.

Del. Code tit. 25, § 5703 Who may maintain proceeding.

The proceeding may be initiated by: (1) The landlord; (2) The owner; (3) The tenant who has been wrongfully put out or kept out; (4) The next tenant of the premises, whose term has begun; or (5) The tenant.

Del. Code tit. 25, § 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.

Del. Code tit. 25, § 5704A Additional documentation relating to lead-based paint hazards [For implementation of this section, see 85 Del. Laws, c. 98, § 5(2)].

(a) When filing a complaint for possession, the landlord must provide documentation to the court demonstrating that the property is in compliance with Chapter 54 of this title, relating to lead-based paint hazards. (b) If the reason for the complaint is because the tenant will not provide reasonable access to the property so that the landlord may comply with Chapter 54 of this title, then documentation under subsection (a) of this section is not required.

Del. Code tit. 25, § 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.

Del. Code tit. 25, § 5706 Manner of service.

(a) Service of the notice of hearing and complaint shall be made in the same manner as personal service of a summons in an action. (b) 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. (c) If no such person can be found after a reasonable effort, service may be made: (1) Upon a natural person by affixing a copy of the notice and complaint upon a conspicuous part of the rental unit within 1 day thereafter, and by sending by either certified mail or first class mail with certificate of mailing, using United States Postal Service Form 3817 or its successor, 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 the defendant; or (2) If defendant is an artificial entity, pursuant to Sup. Ct. R. 57, by sending by certified mail or by sending by first class mail with certificate of mailing, using United States Postal Service Form 3817 or its successor, within 1 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. (d) Service pursuant to this section shall be considered actual or statutory notice.

Del. Code tit. 25, § 5707 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 defendant’s relationship to the petitioner with regard thereto; (3) Describe the rental unit from which removal is sought; (4) State the facts upon which the proceeding is based and attach a copy of any written notice of the basis of the claim as an exhibit to the complaint; and (5) State the relief sought which may include a judgment for rent due if the notice of complaint contains a conspicuous notice that such demand has been made.

Del. Code tit. 25, § 5708 Additional contents of certain complaints.

If possession of the rental unit is sought on the grounds that the tenant has violated or failed to observe a lawful obligation in relation to tenant’s use and enjoyment of the rental unit, the complaint shall, in addition to the requirements of the foregoing section: (1) Set forth the rule or provision of the rental agreement allegedly breached, together with the date the rule was made known to the tenant and a copy of the rule or provision as initially provided to the tenant and the manner in which such rule or provision was made known to the tenant; (2) Allege with specificity the facts constituting a breach of the rule or provision of the rental agreement and that notice or warning as required by law was given to the tenant; (3) Set forth the facts constituting a continued or recurrent violation of the rule or provision of the rental agreement; (4) Set forth the purpose served by the rule or provision of the rental agreement allegedly breached; and (5) Allege that where the rule is not a part of the rental agreement or any other agreement of the landlord and tenant at the time of the formation of the rental agreement, that it does not work a substantial modification of the tenant’s bargain or, if it does, that the tenant consented knowingly in writing to the rule.

Del. Code tit. 25, § 5709 Answer.

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 counter-claim, not to exceed the jurisdiction of the court.

Del. Code tit. 25, § 5710 Trial.

Where triable issues of fact are raised, they shall be tried by the court. At the time when an issue is joined, the court, 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 witnesses or evidence or by consent of all the parties who appear, may adjourn the trial, but not more than 10 days, except by consent of all parties.

Del. Code tit. 25, § 5711 Judgment.

(a) The court shall enter a final judgment determining the rights of the parties. The judgment shall award to the successful party the costs of the proceeding. (b) The judgment shall not bar an action, proceeding or counterclaim commenced or interposed within 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. (c) 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 the costs.

Del. Code tit. 25, § 5712 Default judgment.

(a) 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. Posting and first-class mail, as evidenced by a certificate of mailing, is acceptable as actual notice for the purposes of a default judgment. (b) A party may, within 10 days of the entry of a default judgment or a nonsuit, file a motion with the court to vacate the judgment and if, after a hearing on the motion, the court finds that the party has satisfied the requirements of J. P. Civ. R. 60(b), it shall grant the motion and permit the parties to elect a trial before a single judge or a jury trial.

Del. Code tit. 25, § 5713 Jury trials.

(a) In any civil action commenced pursuant to this chapter, the plaintiff may demand a trial by jury at the time the action is commenced and the defendant may demand a trial by jury within 10 days after being served. Upon receiving a timely demand, the justice shall appoint 6 impartial persons of the county in which the action was commenced to try the cause. In making such appointments, the justice shall appoint such persons from the jury list being used at time of appointment by the Superior Court in the county where the action was commenced. (b) The jury shall be sworn or affirmed that they will “faithfully and impartially try the cause pending between the said plaintiff and defendant and make a true and just report thereupon according to the evidence” and shall hear the allegations of the parties and their proofs. If either party fails to appear before the jury, they may proceed in that party’s absence. When the jury or any 4 of them agree, they shall make a report under their hands and return the same to the justice who shall give judgment according to the report. (c) If any juror appointed fails to appear or serve throughout the trial the justice may supply a replacement by appointing and qualifying another, but there shall be no trial by jury if the defendant has not appeared. (d) In all other cases, the justice shall hear the case and give judgment according to the right of the matter and the law of the land. (e) A Chief Magistrate shall have the authority to designate courts in each county which can accommodate a jury trial.

Del. Code tit. 25, § 5714 Compelling attendance of jurors.

(a) In a proceeding under this chapter, the justice may require the attendance of the jurors the justice appoints, and may issue a summons under hand and seal to a constable for summoning them to appear before the court. (b) If any juror duly summoned fails to appear as required, or to be qualified and serve throughout the trial, the juror shall, unless the juror shows to the justice a sufficient excuse, be guilty of contempt and shall be fined $50 which shall be levied with costs by distress and sale of the juror’s goods and chattels by virtue of a warrant by the justice. (c) The warrant shall be directed to a constable in the following manner: County, ss. The State of Delaware. To any constable, greeting: Whereas, of has been adjudged by , 1 of our justices of the peace, to be guilty of a contempt in making default after due summons as a juror in a case pending before said justice and has been ordered to pay a fine of $50 in pursuance of the act of assembly in such case provided, and Whereas, the said has neglected to pay the said sum, we therefore command you to levy the said sum of $50 with costs and your costs hereon by distress and sale of the goods and chattels of the said upon due notice given as upon other execution process. Witness the hand and seal of the said justice the day of 20

Del. Code tit. 25, § 5715 Execution of judgment; writ of possession.

(a) Upon rendering a final judgment for plaintiff, but in no case prior to the expiration of the time for the filing of an appeal or motion to vacate or open the judgment, the court shall issue a writ of possession 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. (b) The officer to whom the writ of possession is directed and delivered shall give at least 24 hours’ notice to the person or persons to be removed and shall execute it between the hours of sunrise and sunset. MANUFACTURED HOME. If the writ of possession being posted relates to the possession of a rented lot for manufactured housing, under Chapter 70 of this title, and, on or before the date the writ of possession is posted, the tenant has prepaid a per diem storage fee in an amount equivalent to 7 days’ rent, then the court, through its officers, may extend the notice period for the removal of the home from the lot, to a maximum period of 7 calendar days from the date of posting. In no event may the tenant inhabit the home after the first 24 hours of the notice period. If the per diem charge above described has been prepaid and the time for removal has been extended, then 7 calendar days after the posting of the writ, the manufactured home may be removed by the landlord. If the period for removal of the home has not been extended by a prepayment of the per diem amount for storage, then 24 hours after the posting of the writ, the home may be removed from the lot by the landlord. In either event, after removal, the home must be stored at the tenant’s expense for a period of 30 days before it can be disposed of through further legal action. The tenant may not remove the home from the storage location until the landlord has been reimbursed for any judgment amount and the reasonable cost of removal and storage of the manufactured home. (c) The plaintiff has the obligation to notify the constable to take the steps necessary to put the plaintiff in full possession. (d) The issuance of a writ of possession for the removal of a tenant cancels the agreement under which the person removed held the premises and annuls the relationship of landlord and tenant. Plaintiff may recover, by an action for summary possession, any sum of money which was payable at the time when the action for summary possession was commenced and the reasonable value of the use and occupation to the time when a writ of possession was issued and for any period of time with respect to which the agreement does not make any provision for payment of rent, including the time between the issuance of the writ and the landlord’s actual recovery of the premises. (e) If, at the time of the execution of the writ of possession, the tenant fails to remove tenant’s property, the landlord shall have the right to and may immediately remove and store such property for a period of 7 days, at tenant’s expense, unless the property is a manufactured home and the rental agreement is subject to Chapter 70 of this title, in which case the manufactured home must be stored for a period of 30 days. If, at the end of such period, the tenant has failed to claim said property and to reimburse the landlord for the expense of removal and storage in a reasonable amount, such 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 rent and possession at the same hearing. (1) If there is no appeal from the judgment of summary possession at the time of the execution of the writ of possession and the tenant has failed to remove tenant’s property, then the landlord may immediately remove and store such property for a period of 7 days, at tenant’s expense, unless the property is a manufactured home and the rental agreement is subject to Chapter 70 of this title, in which case the manufactured home must be stored for a period of 30 days. (2) If, at the end of such period, the tenant has failed to claim said property and to reimburse the landlord for the expense of removal and storage in a reasonable amount, such property and possessions shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant. (3) All writs of possession where no appeal has been filed must contain the following language: NOTICE WHERE NO APPEAL FILED If you do not remove your property from the premises within 24 hours, then the landlord may immediately remove and store your property for a period of 7 days at your expense, unless the property is a manufactured home and the rental agreement is subject to Chapter 70 of this title, in which case the manufactured home must be stored for a period of 30 days. If you fail to claim your property and reimburse the landlord prior to the expiration of the 7-day period, then the landlord may dispose of your property without any further legal action. MANUFACTURED HOME. If the writ of possession being posted relates to the possession of a rented lot for manufactured housing, under Chapter 70 of this title, and, on or before the date the writ of possession is posted, the tenant has prepaid a per diem storage fee in an amount equivalent to 7 days’ rent, then the court, through its officers, may extend the notice period for the removal of the home from the lot to a maximum period of 7 calendar days from the date of posting. In no event may the tenant inhabit the home after the first 24 hours of the notice period. If the per diem charge above described has been prepaid and the time for removal has been extended, then 7 calendar days after the posting of the writ, the manufactured home may be removed by the landlord. If the period for removal of the home has not been extended by a prepayment of the per diem amount for storage, then 24 hours after the posting of the writ, the home may be removed from the lot by the landlord. In either event, after removal, the home must be stored at the tenant’s expense for a period of 30 days before it can be disposed of through further legal action. The tenant may not remove the home from storage location until the landlord has been reimbursed for any judgment amount and the reasonable cost of removal and storage of the manufactured home. (f) If, at the time of the execution of the writ of possession, an appeal of the judgment of possession has been filed: (1) If there has been an appeal filed from a judgment of summary possession at the time of the execution of the writ of possession and the tenant has failed to remove property within 24 hours, then the landlord may immediately remove and store such property, at the tenant’s expense, for a period of 7 days after the resolution of the appeal, unless the property is a manufactured home and the rental agreement is subject to Chapter 70 of this title, in which case the manufactured home must be stored for a period of 30 days. (2) If, at the end of such period, the tenant has failed to claim said property and to reimburse the landlord for the expense of removal and storage in a reasonable amount, such property and possessions shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant. (3) All writs of possession, where an appeal has been filed, must contain the following language: NOTICE WHERE APPEAL HAS BEEN FILED If you do not remove your property from the premises with 24 hours, then the landlord may immediately remove and store your property until 7 days after your appeal has been decided, at your expense. If you fail to claim your property and reimburse the landlord prior to the expiration of the 7-day period, then the landlord may dispose of your property without any further legal action. MANUFACTURED HOME. If the writ of possession being posted relates to the possession of a rented lot for manufactured housing, under Chapter 70 of this title, and, on or before the date the writ of possession is posted, the tenant has prepaid a per diem storage fee in an amount equivalent to 7 days’ rent, then the court, through its officers, may extend the notice period for the removal of the home from the lot to a maximum period of 7 calendar days from the date of posting. In no event may the tenant inhabit the home after the 1st 24 hours of the notice period. If the per diem charge above described has been prepaid and the time for removal has been extended, then 7 calendar days after the posting of the writ, the manufactured home may be removed by the landlord. If the period for removal of the home has not been extended by a prepayment of the per diem amount for storage, then 24 hours after the posting of the writ, the home may be removed from the lot by the landlord. In either event, after removal, the home must be stored at the tenant’s expense for a period of 30 days before it can be disposed of through further legal action. The tenant may not remove the home from storage location until the landlord has been reimbursed for any judgment amount and the reasonable cost of removal and storage of the manufactured home. (g) Nothing in subsection (d) of this section 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 landlord’s 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 rent and possession at the same hearing. (h) Whenever the plaintiff is put into full possession under this chapter it shall be the duty of the plaintiff, at the time actual repossession occurs, to have the locks to the premises changed if said premises are to be further leased out. Any plaintiff who fails to comply with this subsection shall be liable to any new tenant whose person or property is injured as a result of entry to the premises gained by the dispossessed tenant by use of a key still in their possession which fit the lock to the premises at the time of this tenancy.

Del. Code tit. 25, § 5716 Stay of proceedings by tenant; good faith dispute.

When a final judgment is rendered in favor of the 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 an undertaking to the plaintiff, with such assurances as the court shall require, to the effect that defendant will pay such rent and costs within 10 days of the final judgment being rendered for the plaintiff. At the expiration of said period, the court shall issue a warrant of possession unless satisfactory proof of payment is produced by the tenant.

Del. Code tit. 25, § 5716A Stay of proceedings by the court; right of redemption.

(a) Whenever a tenant fails to pay rent when due and payable under Chapters 55, 57, or 70 of this title, a landlord may file an action under this section. (b) In an action for summary possession of a rental unit or a lot in a manufactured home community for failure to pay rent where the landlord or the landlord’s agent has requested or is awarded a judgment of possession, the tenant has the right to redemption of the rental unit or lot by tendering all past due amounts as determined by the court, including all rent due under the terms of the lease, plus all court-awarded costs and fees, to the landlord or the landlord’s agent. (1) A tenant’s right of redemption applies at any time before the actual execution of the eviction order. (2) After the landlord or landlord’s agent has received the payment, the landlord or landlord’s agent shall immediately notify the court and constable or sheriff to which the writ of possession was directed and make all reasonable efforts to prevent execution of the judgment that is based upon failure to pay rent. (3) Upon receiving notification of or evidence of redemption, the court shall issue an immediate stay of the writ or the proceedings relating to failure to pay rent and must provide a minimum of 5 days for any appropriate evidence or filings to be submitted to the court. a. If payment is made after the writ of possession has posted, in order for the court to issue a stay of the writ, a request to stay the writ must be filed with the court. b. If payment is made after the writ of possession has been posted, the landlord may request the court delay any action under paragraph (b) (5) of this section until any checks used for payment have fully cleared any involved banks. (4) An electronic or written check made by a charitable organization or government entity has the same legal effect as a payment made by the tenant under this subsection. (5) Once the court is provided with the notification of redemption by the landlord or adequate evidence is submitted to the court of the redemption, the court shall vacate any judgment of possession entered relating to failure to pay rent and terminate any such writs issued. (6) This subsection does not apply to any tenant against whom 2 judgments of possession have been entered for failure to pay rent in the 18 months before the initiation of the action to which this subsection would otherwise apply. A judgment vacated under paragraph (b)(5) of this section is still considered a judgment for purposes of calculating the number of judgments in the previous 18 months to determine a tenant’s eligibility under this paragraph. (7) The landlord may restrict the method of payment under this section, unless payment is made by a charitable organization or government entity, as follows: a. Prior to a judgment being entered against the tenant, the landlord may restrict the method of any payments to those accepted under the terms of the lease. b. Once a judgment has been entered against the tenant, the landlord may require payment be made by either certified check or money order.

Del. Code tit. 25, § 5717 Stay of proceedings on appeal.

(a) Nonjury trials. — With regard to nonjury trials, a party aggrieved by the judgment rendered in such proceeding may request in writing, within 5 days after judgment, a trial de novo before a special court comprised of 3 justices of the peace other than the justice of the peace who presided at the trial, as appointed by the chief magistrate or a designee, which shall render final judgment, by majority vote, on the original complaint within 15 days after such 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 request, 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 that party 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 judgment shall thereupon be stayed. (b) An appeal taken pursuant to subsection (a) of this section may also include claims and counter-claims not raised in the initial proceeding; provided, that within 5 days of the filing of the appeal, the claimant also files a bill of particulars identifying any new issues which claimant intends to raise at the hearing which were not raised in the initial proceeding. (c) Jury trials. — With regard to jury trials, a party aggrieved by the judgment rendered in such proceeding may request, in writing, within 5 days after judgment, a review by an appellate court comprised of 3 justices of the peace other than the justice of the peace who presided at the jury trial, as appointed by the chief magistrate or a designee. This review shall be on the record and the party seeking the review must designate with particularity the points of law which the party appealing feels were erroneously applied at the trial court level. The decision on the record shall be by majority vote. No such request shall stay proceedings on such judgment unless the aggrieved party, at the time of making such request, 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 that party 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 judgment shall thereupon be stayed. (d) The Court shall not issue the writ of possession during the 5-day appeal period. After the 5-day appeal period has ended, the Court may issue the writ of possession at the plaintiff’s request if the defendant has filed an appeal, but not filed a bond or other assurance or an in forma pauperis request to stay the issuance of the writ of possession. If the plaintiff executes on the writ of possession prior to a determination of the appeal and the appealing party is ultimately successful, then the plaintiff shall be responsible for reasonable cover damages (including, but not limited to, the cost of substitute housing or relocation) for the period of the dispossession as a result of the execution of the writ of possession, plus court costs and fees. (e) An aggrieved party may appeal in forma pauperis if the Court grants an application for such status. In that event, the Court may waive the filing fee and bond for a trial de novo, a trial on the record or a request to stay the writ of possession. (f) An appeal taken pursuant to this section may include any issue on which judgment was rendered at the trial court level, including the issue of back rent due, any other statute to the contrary notwithstanding.

Del. Code tit. 25, § 5718 Proceedings in forma pauperis.

Upon application of a party claiming to be indigent, the Court may authorize the commencement, prosecution or defense of any civil action or civil appeal without prepayment of fees and costs or security therefor by a person who makes an affidavit that such person is unable to pay the costs or give security therefore. Such affidavit shall state the nature of the action or defense and the affiant’s belief that the affiant is entitled to redress, and shall state sufficient facts from which the Court may make an objective determination of the petitioner’s alleged indigence. The Court may, in its discretion, conduct a hearing on the question of indigence. In any action in which a claim for damages is asserted by a party seeking the benefit of this rule, the prothonotary shall, before entering a dismissal of the claim or satisfaction of any judgment entered therein, require payment of accrued court costs from any party for whose benefit this rule has been applied if said party has recovered a judgment in said proceedings or received any funds in settlement thereof. A party and such party’s attorney of record shall file appropriate affidavits in the event a claim is sought to be dismissed without settlement or recovery.

Del. Code tit. 25, § 5719 Landlord regaining possession of residential rental unit upon the death of a deceased sole tenant.

(a) Possession of a residential rental unit upon the death of a sole tenant shall be returned to the landlord without an action for summary possession if: (1) An affiant or personal representative of the deceased sole tenant’s estate presents the landlord with valid documentation issued by the register of wills evidencing such representation pursuant to Title 12, in which case the landlord shall allow the affiant or personal representative access to the residential rental unit of the deceased sole tenant to remove the deceased sole tenant’s belongings; and (2) An affiant or personal representative informs the landlord that further access to the deceased sole tenant’s residential rental unit is not needed by the affiant or personal representative and/or their agents or 30 days have elapsed since the death of the deceased sole tenant and the affiant or personal representative has not provided the landlord written notice that access to the deceased sole tenant’s residential rental unit is still needed by the affiant or personal representative and/or their agents. (b) If an affiant or personal representative of the deceased sole tenant’s estate presents the landlord with valid documentation issued by the register of wills evidencing such representation pursuant to Title 12, the landlord still retains the right to initiate at any time an action for summary possession and/or moneys due, in which case the landlord shall bring the action against the estate of the deceased sole tenant and serve the complaint upon the affiant or personal representative at the address provided by the affiant or personal representative and, if no such good address is provided, then to serve the complaint upon the register of wills in the county in which the residential rental unit is located. If an affiant or personal representative of the deceased sole tenant’s estate does not present the landlord with valid documentation issued by the register of wills evidencing such representation pursuant to Title 12, the landlord must serve the register of wills in the county in which the residential unit is located in order to bring an action for summary possession to obtain possession of the residential rental unit and moneys due, if any. Anytime the register of wills is to be served as a registered agent for an estate, prior to initiating the action, the landlord must place a notice of such action in a paper that is circulated in the county in which the residential rental unit is located. The notice must identify: the name of the landlord; the name of the deceased sole tenant; the residential rental unit address; the type of action to be brought; the court in which such action will be brought; and the amount of the claim, if any. (c) If at the time of the execution of the writ of possession there is still property inside the deceased sole tenant’s residential rental unit that does not belong to the landlord then the landlord shall have the right to immediately remove and store such property for a period of 7 days, at the expense of the estate of the deceased sole tenant. If at the end of such period, a representative of the estate, who has valid documentation of such representation issued by the register of wills pursuant to Title 12, has failed to claim said property and reimburse the landlord for the reasonable expenses of removal and storage, such property shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to any party. Upon rendering a final judgment for plaintiff, but in no case prior to the expiration of the time for the filing of an appeal or motion to vacate or open the judgment, the court shall issue a writ of possession 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. (d) If the landlord is not entitled to all or any portion of the security deposit, the landlord shall remit the security deposit within 20 days of receiving possession of the residential rental unit (or, if storage of property that was inside the deceased sole tenant’s residential rental unit is required, then within 20 days after the storage of said property has ended) to a representative of the estate of the deceased sole tenant, if any, who has valid documentation of such representation issued by the register of wills pursuant to Title 12. Within 20 days after receiving possession of the residential rental unit of the deceased sole tenant (or, if storage of property that was inside the deceased sole tenant’s residential rental unit is required, then within 20 days after the storage of said property has ended), the landlord shall provide the representative of the estate of the deceased sole tenant, if any, with an itemized list of damages to the premises and the estimated costs of repair for each and shall tender payment for the difference between any rental amount due and owing, the security deposit and such costs of repair of damage to the premises. Failure to do so shall constitute an acknowledgment by the landlord that no payment is due. The representative’s acceptance of a payment submitted with an itemized list of damages shall constitute agreement on the rental amount due, if any, and damages as specified by the landlord, unless the representative of the estate, within 10 days of the representative’s receipt of such tender of payment, objects in writing to the amount withheld by the landlord. Failure for a representative of the estate to present the landlord with valid documentation of such representation issued by the register of wills or failure of the representative to provide the landlord with a good address shall relieve the landlord of responsibility to give notice of any damages and potential liability for double the amount of the security deposit, but the landlord shall continue to be liable to the representative of the estate for any unused portion of the security deposit; provided, that the representative of the estate shall make a claim in writing to the landlord within 1 year from the landlord receiving possession of the residential rental unit of the deceased sole tenant.

Del. Code tit. 25, § 5720 Shielding of records.

(a) A defendant in an action under this chapter may apply to the Court in which the action was filed for an order shielding the record of the action. The Court must grant the defendant’s motion if the Court finds any of the following: (1) The judgment against the defendant was a judgment on the merits, a default judgment, or a stipulated judgment, 5 or more years have passed since the judgment was entered, the defendant has satisfied any monetary award included in the judgment, and the defendant has had no other similar judgments within 5 years of the defendant’s motion to shield. (2) The parties resolved the action through a stipulated agreement, and the defendant has complied with the terms of the stipulated agreement. (3) The plaintiff withdrew the complaint. (4) The Court dismissed the plaintiff’s complaint. (5) The final judgment was in favor of the defendant. (6) The plaintiff and defendant have agreed to the shielding. (7) The shielding of the record is clearly in the interests of justice. (b) If the Court determines the defendant is eligible for relief under subsection (a) of this section, the Court must issue an order shielding the record of the action and setting aside the original judgment, if a judgment was entered. (c) On entry of the Court’s order under subsection (b) of this section, the action that is the subject of shielding under subsection (a) of this section is deemed not to have been filed, and the defendant may answer accordingly any questions related to the action’s occurrence. (d) Within 45 days of the Court’s entry of an order under subsection (b) of this section, the Court must do all of the following: (1) Provide the defendant with written notification of the shielding and a certified copy of the records being shielded. (2) Provide the defendant with written notification that the records being shielded will no longer be accessible to the public through the Delaware court system. (3) Remove the record of the action from all of the Court’s databases or systems that are publicly accessible. (4) Ensure that all physical or electronic records held by the Court that are associated with the action are stored in such a way as to be permanently inaccessible to the public except as provided for under paragraph (e)(3) of this section. (e) Shielded records may only be disclosed if 1 of the following occurs: (1) The records are requested by the Department of Justice, which must maintain the confidentiality of the records. (2) The records are requested by the defendant. (3) The Court considers publication in the public interest and redacts or otherwise obscures the defendant’s name, personal information, and the address of the property for which summary possession was sought. (f) The Court may not charge a filing fee for filing a motion under subsection (a) of this section. (g) The Court may adopt such rules as necessary to implement this section.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title25/c057/index.htmlFetched: 10/4/2026

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