If you ask most landlords what the worst part of managing properties is, they’ll probably tell you that it’s when they have to begin the eviction process. Evicting tenants happens when they don’t pay their rent, have committed serious damage to the property, or have violated the terms of their lease. Unfortunately, the eviction process often costs you time, money, and human power.
If you have found yourself in a situation where you may have to evict your tenant, there is a process that you must follow to do so legally. Read on to learn more about how to evict someone who doesn’t pay rent.
Talk to Them
As a good landlord, you can talk to your tenant rationally to try to work things out. Find out why they are late with the rent and see if you can work out a plan with them. Legally, you don’t have to do this, but if you want to save yourself time and money, you might want to try to work it out with the tenants before you go down the eviction road.
In the best-case scenario, you can have a rational conversation with your tenant and come to an agreement on when rent will be paid. You can also give them a written reminder that their rent is late and that there will be a late fee. If it happens often, though, you might choose to forego giving them a chance to pay rent late and move to the eviction process.
In Delaware, rent is considered late the day after it is due but a late fee can only be assessed after a 5 day grace period (per the Landlord Tenant code).
Step 1: 5-Day Notice to Pay
Before you can begin the eviction process, Delaware law requires a “five-day notice to pay.” This written notice gives the tenant five days to pay the rent in full to avoid eviction. These five days do not include weekends or holidays.
If the tenant pays the rent in full within the five-day period, the eviction process stops. If the tenant does not pay within five days and remains in the property, then the landlord can proceed with eviction.
Step 2: File the Complaint
The next step in the process is to file a complaint. This complaint should be completed and filed in the Justice of the Peace Court usually in the area closest to the location of the rental property. This filing must include the following information:
- The interests of the plaintiff and defendant and their relationship to each other as it relates to the rental unit
- Statement of facts that call for eviction
- A copy of any written notice sent to the tenant, including the five-day notice to pay, described above and proof of mailing
- A statement of what you seek through the court action (most likely, you’ll be asking for back rent and possession of the rental unit)
Once you file the complaint, a constable will serve the tenant with the summons and complaint prior to the hearing. Serving the tenant is included in your filing fee but you may choose to pay a professional process server to serve them.
Your court action will be scheduled for trial and the defendant will be summoned to appear at trial. You’ll get a notice in the mail with the date and time, but keep in mind that it may take a weeks if not a few months before the trial happens. There is no legal requirement on how quickly these trials must take place.
How quickly it is scheduled depends on how busy the court is.
Step 3: The Trial
You are encouraged to have an attorney present to help you present your case at trial, but you may choose to represent yourself. To prepare for trial, bring the following with you:
- The rental agreement
- The rental agreement termination that was sent to the tenant and proof of mailing
- Important dates (move-in date, previous late rent payment dates, etc.) should be brought to court so you can access them if the judge should ask about them
You should also prepare how you are going to present your side to the judge to justify the eviction. If the judge rules in your favor, the tenant has ten days to appeal.
Step 4: A Writ of Possession Is Issued
If the tenant does not appeal, a writ of possession can be issued after ten days; it will not be issued before ten days have passed.
The writ of possession is the final order that the tenant must vacate the property. Once the writ of possession is received, the constable must serve the tenant and give them 24 hours to leave the property. If they do not leave within 24 hours, then the constable can forcibly remove them.
If any possessions are left in the rental unit, the landlord can remove them and must store them at the tenant’s expense for seven days. If the tenant does not claim them after seven days, then they are considered abandoned and the landlord can do with them as they wish.
**Please note that the state can change the rules/process at any time so make sure you always check here for up to date information https://courts.delaware.gov/help/landlordtenant/
Use This Guide On How to Evict Someone Who Doesn’t Pay Rent
Now that you have an idea of how to evict someone who doesn’t pay rent, you can take the appropriate steps if you have a tenant who has violated their lease agreement. It’s always wise to speak to an attorney, however, to ensure that you are following the laws of your particular state.
If you’d rather avoid the day-to-day landlord duties, an experienced property management company can take care of everything for you. Contact us today to learn more about how we can handle all of your property management needs.
