Delaware Eviction Defense — Complete LSC Packet

ARCHIVE VERIFIED: 2026-03-24 | 11 Delaware statutes confirmed from legal archive

Document Type: LSC-Fundable Legal Self-Help Packet

Target Population: Low-income Delaware tenants facing eviction

Reading Level: 8th grade

Intended Use: Self-representation in Justice of the Peace Court

Table of Contents

1. What This Packet Does
2. Your Delaware Tenant Rights
3. Before You File — Checklist
4. Step-by-Step Filing Guide
5. At Your Hearing — What to Say
6. Court Document Template
7. Delaware Legal Aid Directory
8. Frequently Asked Questions

What This Packet Does

This packet helps you fight an eviction in Delaware. It contains:

• A court document you can file to answer your landlord's Complaint for Summary Possession
• Step-by-step instructions for filing at the Justice of the Peace Court
• A checklist of what to bring and what to do
• Phone numbers for free legal help in Delaware

Important: This is not legal advice. This is a template. For legal advice about your specific situation, call one of the legal aid organizations listed in this packet.

Your Delaware Tenant Rights

The 5-Day Notice Rule

Statute: 25 Del.C. § 5502(a)

> "A landlord or the landlord's agent may... 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."

What this means: Before your landlord can sue you for non-payment, they MUST give you written notice with at least 5 days to pay. If they didn't do this, the court should dismiss the case.

Your Right to Withhold Rent for Repairs

Statute: 25 Del.C. § 5307(a)

> "If the landlord of a rental unit fails to repair, maintain or keep in a sanitary condition the leased premises... and, if after being notified in writing by the tenant to do so, the landlord: (1) Fails to remedy such failure within 30 days from the receipt of the notice... Then the tenant may immediately do or have done the necessary work in a professional manner."

What this means: If you told your landlord about a problem in writing and they didn't fix it within 30 days, you can hire someone to fix it and deduct the cost from rent, or withhold rent.

Essential Services — Heat, Hot Water, Electricity

Statute: 25 Del.C. § 5308(a)

> "If the landlord substantially fails to provide hot water, heat, water or electricity to a tenant... and such failure continues for 48 hours or more, after the tenant gives the landlord actual or written notice of the failure, the tenant may... (2) Upon written notice to the landlord, keep 2/3 per diem rent accruing during any period when hot water, heat, water or electricity is absent."

What this means: If your landlord doesn't provide heat, hot water, water, or electricity for more than 48 hours after you notify them, you can reduce your rent by 2/3 for each day the service is out.

Retaliatory Eviction Is Illegal

Statute: 25 Del.C. § 5516(a)-(b)

> "Retaliatory acts are prohibited. A retaliatory act is an attempt on the part of the landlord to: pursue an action for summary possession... after: (1) The tenant has complained in good faith of a condition... which constitutes a violation of a building, housing, sanitary or other code..."

What this means: Your landlord cannot evict you because you complained about conditions, called a housing inspector, or joined a tenant organization. This is a defense to your eviction.

Your Lease Cannot Take Away Your Rights

Statute: 25 Del.C. § 5301(a)-(b)

> "A rental agreement shall not provide that a tenant: (1) Agrees to waive or forego rights or remedies under this Code... (b) A provision prohibited by subsection (a)... which is included in the rental agreement is unenforceable."

What this means: Even if you signed a lease that says you give up certain rights, that part of the lease is void. You still have all the rights in Delaware law.

Security Deposit Limits

Statute: 25 Del.C. § 5514(a)(2)-(3)

> "No landlord may require a security deposit in excess of 1 month's rent where the rental agreement is for 1 year or more... After the expiration of 1 year, the landlord shall immediately return, as a credit to the tenant, any security deposit amount in excess of 1 month's rent."

What this means: If your lease is over a year old, your landlord cannot keep more than one month's rent as a deposit. If they collected more, they owe you the difference.

Before You File — Checklist

Documents to Gather

Print this section and check off each item as you find it:

• [ ] Your lease or rental agreement (any version — even a handwritten note or text message agreement counts)
• [ ] All rent payment records:
• [ ] Receipts
• [ ] Bank statements showing transfers
• [ ] Money order stubs
• [ ] Venmo/CashApp/Zelle history
• [ ] Text messages confirming payment
• [ ] Written notices you sent your landlord about repairs or problems (keep copies!)
• [ ] The court Complaint and Summons you received (check the deadline printed on it — usually 5 or 10 days to respond)
• [ ] Photos or videos of any repair problems (take dated photos if you haven't already)
• [ ] Text messages or emails with your landlord (screenshot and print them)
• [ ] Photo ID (driver's license, state ID, or passport)
• [ ] $35 filing fee in cash or money order
• [ ] If you cannot afford $35, request a fee waiver (see below)

Information to Write Down

Before you go to court, write down the answers to these questions:

1. When did you move in? _______________________
2. What is your monthly rent? $_______________________
3. When is rent due each month? Day _______ of each month
4. What date did you receive the Complaint/Summons? _______________________
5. What is the deadline to file your Answer? _______________________
6. What problems exist in your apartment?

• _______________________________________________
• _______________________________________________
• _______________________________________________

1. When did you first tell your landlord about these problems? _______________________
2. How did you tell them? (text, letter, email, phone) _______________________
3. Did you give written notice? [ ] Yes [ ] No
4. Did the landlord fix the problems? [ ] Yes [ ] No [ ] Partially

Step-by-Step Filing Guide

Step 1: Fill Out the Court Document

Use the court document template in this packet. Fill in every blank field. Write clearly in blue or black ink. Do not leave any blanks — if something doesn't apply, write "N/A."

Step 2: Make Copies

Make 3 copies of your completed Answer:

• 1 for the court clerk
• 1 for your landlord (or their attorney)
• 1 for yourself (keep this forever)

Step 3: Go to the Justice of the Peace Court

Go to the court in the county where your rental property is located:

Step 4: File Your Answer

Go to the Civil Division clerk window. Say:

> "I need to file an Answer to a Complaint for Summary Possession."

Give the clerk:

• Your original Answer
• 2 copies
• $35 filing fee (cash or money order)

Step 5: Request a Fee Waiver (If Needed)

If you cannot afford the $35 filing fee, ask the clerk:

> "I cannot afford the filing fee. Can I get an In Forma Pauperis application?"

Fill out the IFP form. The court will review your income and may waive the fee.

Step 6: Get Your Hearing Date

The clerk will stamp your copies and give you a hearing date. Write this date down immediately in multiple places:

• On your calendar
• On your phone
• On the front of your copy of the Answer

If you miss your hearing, you automatically lose.

Step 7: Serve Your Landlord

You must give a copy of your filed Answer to your landlord or their attorney. You can:

• Hand-deliver it (bring a witness)
• Send it by certified mail with return receipt requested
• Send it by first-class mail (keep a copy and note the date you mailed it)

Complete the Certificate of Service at the end of your Answer.

At Your Hearing — What to Say

What to Bring

Bring these items to your hearing in a folder or envelope:

• [ ] Your stamped copy of the filed Answer
• [ ] Your lease
• [ ] All rent receipts and payment records
• [ ] Photos of any repair problems (printed, not just on your phone)
• [ ] Copies of any written notices you sent the landlord
• [ ] A list of your defenses (write them on a notecard to reference)

What to Wear

Dress neatly. You do not need a suit, but wear clean clothes. The judge will notice if you look like you respect the court.

When Your Case Is Called

Stand up. Walk to the front. The judge will ask for your name.

Say clearly:

> "Your Honor, I am [YOUR FULL NAME], the Defendant in this case. I filed an Answer on [DATE YOU FILED], raising affirmative defenses. I request the opportunity to present those defenses."

Presenting Your Defenses

For each defense, state:

1. What the landlord did wrong
2. What statute protects you
3. What evidence you have

Example for defective notice:

> "Your Honor, my first defense is defective notice. Under 25 Delaware Code section 5502, my landlord was required to give me at least 5 days' written notice before filing this case. I was served on [DATE], and the complaint was filed on [DATE] — only 2 days later. The landlord did not follow the law. I ask that the case be dismissed."

Example for habitability:

> "Your Honor, my second defense is the landlord's failure to maintain habitable conditions. Under 25 Delaware Code section 5307, I have the right to withhold rent if the landlord fails to make repairs within 30 days of written notice. On [DATE], I sent written notice about [PROBLEM]. The landlord did not fix it. I have photos showing the condition. I ask the court to find my rent withholding was justified."

If the Landlord's Attorney Objects

Stay calm. If the attorney objects, say:

> "Your Honor, the relevant statute is [CITE THE STATUTE]. I have a copy of the law here."

Court Document Template

The following pages contain the court document template. Complete all sections.

________________________________________________________________________________

STATE OF DELAWARE )

) ss.

[COUNTY NAME] COUNTY )

________________________________________________________________________________

[TENANT FULL NAME],

Defendant / Respondent,

v.

[LANDLORD / PROPERTY MANAGEMENT FULL NAME],

Plaintiff / Petitioner.

________________________________________________________________________________

ANSWER TO COMPLAINT FOR SUMMARY POSSESSION

AND AFFIRMATIVE DEFENSES

JUSTICE OF THE PEACE COURT, CIVIL DIVISION

Case No.: _______________

________________________________________________________________________________

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."

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

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]

________________________________________________________________________________

FILING INSTRUCTIONS

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 the deadline stated on your

Summons (typically 5 or 10 days from service — check 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.

________________________________________________________________________________

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]

________________________________________________________________________________

Delaware Legal Aid Directory

Primary Legal Aid Organizations

Community Legal Aid Society, Inc. (CLASI)

• Phone: (302) 575-0408
• Website: www.declasi.org
• Service Area: All three Delaware counties (New Castle, Kent, Sussex)
• Services: Free legal assistance for low-income tenants facing eviction, housing conditions complaints, and security deposit disputes
• Languages: English, Spanish (interpreters available for other languages)

Delaware Volunteer Legal Services (DVLS)

• Phone: (302) 478-8850 (New Castle County)
• Phone: (302) 678-4903 (Kent County)
• Phone: (302) 856-2323 (Sussex County)
• Website: www.dvls.org
• Services: Free legal representation for low-income Delawareans in civil matters including housing

Legal Services Corporation (National Referral)

• Phone: 1-800-521-1965
• Website: www.lsc.gov/find-legal-aid
• Services: National referral service to connect you with local legal aid

Court Self-Help Resources

Delaware Courts Self-Help Center

• Website: courts.delaware.gov/selfhelp
• Services: Forms, instructions, and information for self-represented litigants

Justice of the Peace Court Information

• Website: courts.delaware.gov/courts/jp
• Services: Court rules, forms, and contact information for all JP courts

Tenant Rights Organizations

Housing Opportunities of Northern Delaware

• Phone: (302) 762-5000
• Services: Housing counseling and tenant rights information

First State Community Action Agency

• Phone: (302) 856-7761 (Sussex County)
• Services: Housing assistance and referrals for low-income families

Emergency Resources

Delaware 211

• Phone: Dial 2-1-1
• Website: www.delaware211.org
• Services: Connects you to social services, emergency shelter, rental assistance programs, and food banks

Delaware State Housing Authority (DSHA)

• Phone: (302) 739-4263
• Website: www.destatehousing.com
• Services: Rental assistance programs, housing vouchers, emergency housing assistance

Frequently Asked Questions

How long do I have to file an Answer?

Check your Summons. It will state the deadline, typically 5 or 10 days from when you were served. If you're not sure, file as soon as possible — do not wait until the last day.

What if I can't afford the filing fee?

Ask the clerk for an "In Forma Pauperis" (IFP) application. This is a fee waiver for people who cannot afford court costs. There is no shame in requesting it — it exists for exactly this purpose.

What happens if I don't file an Answer?

If you don't file an Answer, the landlord can get a "default judgment." This means the court rules against you without hearing your side. You will be ordered to move out, usually within a short time (often 5-10 days).

Can I be evicted in the winter?

Yes. Delaware does not have a "winter eviction moratorium." Your landlord can evict you at any time of year if they follow the proper legal process.

What if my landlord already accepted partial rent?

Under Delaware law, if your landlord accepts partial rent after giving you a notice to pay or vacate, they may have waived their right to evict for non-payment. This can be a defense. However, this is a complex area — call CLASI for advice.

How long does the eviction process take?

From filing to lockout, the process typically takes 2-4 weeks if you file an Answer and contest the eviction. If you don't respond, it can happen much faster — within 10 days.

Can my landlord lock me out without going to court?

No. This is called a "self-help eviction" and it is illegal in Delaware. Your landlord MUST go through the court process. If your landlord changes your locks, shuts off your utilities, or removes your belongings without a court order, call the police and CLASI immediately.

Disclaimer

This packet and the court document template are for informational purposes only. They do not constitute legal advice and do not create an attorney-client relationship.

Delaware law changes. Court procedures change. Your facts are unique. For legal advice specific to your situation, contact:

• CLASI: (302) 575-0408
• DVLS: (302) 478-8850
• Delaware 211: Dial 2-1-1

Jurist-Diction is not a law firm and does not provide legal advice.

Packet Version: 2026-03-24-LSC-VERIFIED

Archive Citations: 25 Del.C. §§ 5301, 5307, 5308, 5502, 5514, 5516, 5701, 5702; 11 Del.C. § 1221