Legal Packet

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STATE OF DELAWARE )

) ss.

NEW CASTLE COUNTY )

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[TENANT FULL NAME],

Defendant / Respondent,

v.

[LANDLORD / PROPERTY MANAGEMENT FULL NAME],

Plaintiff / Petitioner.

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ANSWER TO COMPLAINT FOR SUMMARY POSSESSION

AND AFFIRMATIVE DEFENSES

JUSTICE OF THE PEACE COURT, CIVIL DIVISION

Case No.: _______________

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COMES NOW Defendant/Respondent, [TENANT FULL NAME], and files this Answer to

the Complaint for Summary Possession as follows:

PARTIES AND JURISDICTION

1. Defendant [TENANT FULL NAME] is a residential tenant residing at [PROPERTY

ADDRESS], [CITY], Delaware [ZIP CODE].

1. Plaintiff [LANDLORD NAME] is the owner or designated agent of the subject

residential rental unit.

1. This Court has jurisdiction over this matter pursuant to 25 Del.C. § 5701,

which provides that "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."

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MANDATORY EVICTION DIVERSION PROGRAM NOTICE

(25 Del. C. § 5716 — Effective July 1, 2024)

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DELAWARE LAW REQUIRES that ALL residential eviction cases participate in the

Delaware Eviction Diversion Program before a court hearing can proceed. This

requirement applies to nonpayment of rent cases and other lease violations.

WHAT THIS MEANS FOR YOU AS A TENANT:

1. Before your court hearing, you will be contacted about the Diversion Program
2. Participation is MANDATORY — the hearing cannot proceed without it
3. The program provides FREE mediation and connection to rental assistance funds
4. If a diversion agreement is reached, the eviction case may be dismissed

HOW TO ACCESS THE PROGRAM (contact immediately upon receiving the complaint):

• Delaware State Housing Authority: (302) 739-4263

• Statewide Housing Hotline: (800) 220-5414

• Delaware Legal Help Link: delawarelegalhelp.org

• Your local Justice of the Peace Court clerk can also provide referrals

RENTAL ASSISTANCE:

Delaware Emergency Rental Assistance may be available. Contact the Delaware

State Housing Authority at (302) 739-4263 or visit www.destatehousing.com

NOTE: Diversion does not waive your legal defenses. All defenses and arguments

in this Answer remain valid regardless of the diversion outcome.

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RESPONSE TO ALLEGATIONS

1. Defendant [ADMITS / DENIES] that the monthly rent is $[AMOUNT].

1. Defendant [ADMITS / DENIES] that rent was due on the [DAY] of each month.

1. Defendant [ADMITS / DENIES] that the Plaintiff served a written demand for

rent prior to filing this action.

1. Defendant states that any alleged non-payment of rent was partial or temporary

and was caused, in whole or in part, by [STATE REASON: e.g., habitability

conditions, landlord's failure to make repairs, landlord's wrongful acceptance

of partial payment, domestic emergency, etc.].

AFFIRMATIVE DEFENSES

FIRST DEFENSE: DEFECTIVE NOTICE — FIVE-DAY REQUIREMENT NOT MET

1. Under 25 Del.C. § 5502(a), before bringing an action for summary possession

based on failure to pay rent, a landlord must "notify the tenant in writing

that unless payment is made within a time mentioned in such notice, to be

not less than 5 days after the date notice was given or sent, the rental

agreement shall be terminated."

1. Plaintiff's written notice to vacate [was not served / did not provide the

required 5-day minimum period / was not properly delivered] as required by

25 Del.C. § 5502(a). Therefore, the action for summary possession is

premature and must be dismissed.

SECOND DEFENSE: LANDLORD'S FAILURE TO MAINTAIN HABITABLE CONDITIONS —

RENT WITHHOLDING JUSTIFIED

1. Under 25 Del.C. § 5307(a), if a landlord "fails to repair, maintain or keep

in a sanitary condition the leased premises or perform in any other manner

required by statute, code or ordinance, or as agreed to in the rental

agreement," and the landlord fails to remedy such failure within 30 days of

written notice, the tenant may withhold rent or deduct repair costs.

1. Beginning on approximately [DATE], the subject premises had the following

defective conditions: [LIST CONDITIONS, e.g., broken heating system, mold,

water intrusion, pest infestation, non-functional plumbing].

1. Defendant gave Plaintiff written notice of these conditions on [DATE].

1. Plaintiff failed to remedy the conditions within 30 days as required by

25 Del.C. § 5307(a)(1).

1. Defendant's non-payment or partial payment of rent is therefore legally

justified as a repair-and-deduction remedy under 25 Del.C. § 5307.

THIRD DEFENSE: FAILURE TO PROVIDE ESSENTIAL SERVICES

1. Under 25 Del.C. § 5308(a), if a landlord "substantially fails to provide

hot water, heat, water or electricity to a tenant, or fails to remedy any

condition which materially deprives a tenant of a substantial part of the

benefit of the tenant's bargain," and such failure continues for 48 hours

or more after actual or written notice, the tenant may withhold rent or

terminate the agreement.

1. From approximately [DATE] to [DATE], Plaintiff failed to provide [SPECIFY:

heat / hot water / functioning appliances / other essential service] to the

subject premises.

1. Defendant gave Plaintiff notice of this failure on [DATE]. The failure

continued for more than 48 hours after notice.

1. Pursuant to 25 Del.C. § 5308(a)(2), Defendant is entitled to withhold

2/3 per diem rent for each day the essential service was absent, which

offsets any alleged arrears.

FOURTH DEFENSE: RETALIATORY EVICTION

1. Under 25 Del.C. § 5516(a), "Retaliatory acts are prohibited."

1. Under 25 Del.C. § 5516(b), a retaliatory act includes an attempt by the

landlord to "pursue an action for summary possession or otherwise cause

the tenant to quit the rental unit involuntarily" after "the tenant has

complained in good faith of a condition in or affecting the rental unit

which constitutes a violation of a building, housing, sanitary or other

code or ordinance."

1. On [DATE], Defendant complained to [LANDLORD / HOUSING AUTHORITY] about

[CONDITION], which constitutes a violation of housing codes.

1. This eviction action was filed within [NUMBER] days of Defendant's complaint,

constituting retaliatory conduct prohibited by 25 Del.C. § 5516.

FIFTH DEFENSE: ILLEGAL LEASE WAIVER PROVISIONS VOID

1. Under 25 Del.C. § 5301(a), a rental agreement shall not provide that a

tenant agrees to waive or forego rights or remedies under Delaware Code,

or agrees to exculpation of landlord liability.

1. 25 Del.C. § 5301(b) states that "a provision prohibited by subsection (a)

of this section which is included in the rental agreement is unenforceable."

1. Plaintiff's lease contains the following provision(s) prohibited by

25 Del.C. § 5301(a): [DESCRIBE ILLEGAL LEASE TERMS if applicable].

These provisions are void and unenforceable as a matter of law.

COUNTERCLAIM: SECURITY DEPOSIT VIOLATION [if applicable]

1. Under 25 Del.C. § 5514(a)(2), "no landlord may require a security deposit

in excess of 1 month's rent where the rental agreement is for 1 year or more."

1. Plaintiff collected a security deposit of $[AMOUNT] from Defendant, which

exceeds one month's rent of $[MONTHLY RENT].

1. Plaintiff's collection of an excessive security deposit violates 25 Del.C.

§ 5514 and entitles Defendant to damages.

PRAYER FOR RELIEF

WHEREFORE, Defendant/Respondent [TENANT FULL NAME] respectfully requests that

this Court:

a) Dismiss the Complaint for Summary Possession in its entirety;

b) Find that Defendant's withholding of rent was legally justified under

25 Del.C. §§ 5307 and/or 5308;

c) Find that Plaintiff's eviction action is retaliatory and prohibited by

25 Del.C. § 5516;

d) Award Defendant a per diem rent abatement for each day essential services

were absent pursuant to 25 Del.C. § 5308(a)(2);

e) If applicable, award Defendant damages for the unlawful security deposit

in excess of the statutory limit under 25 Del.C. § 5514;

f) Award Defendant costs of this proceeding; and

g) Grant such other and further relief as this Court deems just and proper.

VERIFICATION

I, [TENANT FULL NAME], being duly sworn, declare under penalty of perjury

under the laws of the State of Delaware (see 11 Del.C. § 1221) that the

foregoing Answer and the facts stated herein are true and correct to the

best of my knowledge, information, and belief.

Executed this ___ day of _____________, 20___.

______________________________

Signature of Defendant/Respondent

[TENANT FULL NAME, printed]

[ADDRESS]

[CITY, STATE, ZIP]

[PHONE NUMBER]

[EMAIL, if comfortable providing]

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FILING INSTRUCTIONS

EVICTION DIVERSION PROGRAM (25 Del. C. § 5716 — MANDATORY as of July 1, 2024):

All residential eviction cases must go through Delaware's Eviction Diversion

Program. Contact (302) 739-4263 or delawarelegalhelp.org immediately.

Court: Justice of the Peace Court — Civil Division

(File in the county where the property is located)

New Castle Co: Justice of the Peace Court No. 11

2600 Pheasant Way, Wilmington, DE 19803

Phone: (302) 255-0300

Hours: Monday–Friday, 8:00 AM – 4:30 PM

Kent County: Justice of the Peace Court No. 16

480 Bank Lane, Dover, DE 19901

Phone: (302) 739-4880

Sussex County: Justice of the Peace Court No. 3

22883 DuPont Blvd., Georgetown, DE 19947

Phone: (302) 856-5261

Filing Fee: $35.00 per case (verify current fee at the court clerk window)

Fee Waiver: Request an "In Forma Pauperis" (IFP) application

from the clerk if you cannot afford the filing fee.

Deadline: You must file your Answer within [5 / 10] days of being served

with the Complaint (the number of days will be stated on your

summons — check it carefully).

Copies: Bring 3 copies of this Answer: one for the clerk, one for the

Plaintiff (landlord), one for yourself.

After Filing: The clerk will assign a hearing date. You will be notified

by mail. Do not miss this date. Failure to appear may result

in a default judgment against you.

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CERTIFICATE OF SERVICE

I hereby certify that on [DATE], I served a copy of this Answer on

Plaintiff/Landlord [NAME] by [hand delivery / first-class mail / certified

mail] at the following address:

[LANDLORD OR ATTORNEY ADDRESS]

______________________________

[TENANT FULL NAME]

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