5-Day Eviction Notice in Delaware: Delivery, Payment, and Defenses

In Delaware, a 5-day eviction notice is the written demand a landlord must give a tenant for unpaid rent before filing for summary possession in the Justice of the Peace Court. Under 25 Del. C. § 5502, the landlord can issue the notice any time after rent is due, and if the tenant does not pay in full within at least five days, the landlord can file suit.¹ Skipping the notice, or getting it wrong, can get the whole case dismissed.

When the 5-Day Notice Applies

The 5-day notice is only for nonpayment of rent. A landlord can issue it the day after rent is due, or even during the grace period before late fees kick in.¹ Other lease violations, such as property damage or unauthorized occupants, go through a separate 7-day cure notice process and are not covered here.

Delaware caps late fees at 5 percent of the monthly rent and bars landlords from charging them within five days of the rent due date. The landlord must also keep a local office or permanent location where the tenant can pay rent. If there is no such payment location, the rent deadline extends by three additional days beyond the due date.²

The demand should list only unpaid rent. Late charges can be pursued separately as “additional rent” in a suit for rent alone, but the notice itself should clearly state the base rent owed.¹ Lumping in disputed fees, or charges the lease does not specifically define as rent, gives the tenant grounds to challenge the notice.

What the Notice Must Say

A valid 5-day notice has to make four things clear: who owes the rent, where the rental unit is, exactly how much is overdue, and what happens if the tenant does not pay. The statute requires a written demand stating that unless payment is made within the time specified — at least five days — the rental agreement will terminate.¹

Name every adult tenant on the lease. Get the dollar amount exactly right. A landlord claiming $1,200 when the actual overdue amount is $1,150 risks dismissal for the discrepancy. Standardized forms from the Delaware Justice of the Peace Court help make sure nothing is left out. Entering original due dates and itemizing the outstanding balance on those forms creates a clean record for any later hearing.

How to Count the Five Days

The five-day clock starts the day after the notice is given or sent. The day of delivery itself does not count. Because Delaware’s rules for computing time exclude intermediate Saturdays, Sundays, and legal holidays for any period shorter than seven days, the tenant effectively gets five full business days to pay. The Delaware Courts give a concrete example: a notice given on Friday, August 1 means the tenant has until at least August 8 to pay, because the weekend days in between are excluded.³

If the last day of the five-day window falls on a weekend or legal holiday, the deadline rolls to the next regular business day. Landlords who miscount risk having the case dismissed before it starts.

Delivering the Notice

The statute says the landlord must “notify the tenant in writing” and uses the phrase “given or sent,” which gives landlords more flexibility for this pre-filing notice than for later court service.¹ Handing the notice directly to the tenant creates the clearest proof of delivery. Certified mail with a certificate of mailing also creates a paper trail that holds up in court.

Document everything. If the case goes to a hearing, the judge will want to see when and how the tenant received the notice. Keep copies of the notice, the date it was served, and any mailing receipts. A landlord who cannot prove delivery is essentially starting over.

How a Tenant Can Stop the Eviction by Paying

Paying the full amount owed during the five-day window stops the eviction. If the tenant pays everything owed before the landlord files a court action, and the landlord accepts the payment without a written reservation of rights, the landlord loses the right to proceed with a summary possession or nonpayment action.¹

The same protection applies after suit is filed. If the tenant pays all rent due and the landlord accepts it without a written reservation of rights, the landlord cannot continue the action for past-due rent.¹ For landlords, this is where the reservation of rights matters. Cashing a rent check after filing, without attaching a written statement preserving the right to continue the case, waives the eviction. A short written note stating the landlord accepts payment while reserving all rights under the Landlord-Tenant Code preserves the case.

If the Tenant Doesn’t Pay: Filing for Summary Possession

Once the five-day period expires without full payment, the landlord files a Complaint for Summary Possession in the Justice of the Peace Court. The filing fee is $45.⁴ The landlord submits the complaint form along with a copy of the original 5-day notice and proof of delivery.

Federal law adds one requirement landlords often overlook. Under the Servicemembers Civil Relief Act, the landlord must file an affidavit stating whether the tenant is on active military duty before the court can enter any judgment.⁵ If the tenant is on active duty, the court can postpone the hearing for three months or longer. Skipping this affidavit can invalidate a default judgment.

The court then serves the tenant with the complaint and a hearing notice, and the hearing is set at least 5 days but no more than 30 days after service. At the hearing, the landlord presents the rent ledger, the 5-day notice, and proof of delivery.

Defenses a Tenant Can Raise

Tenants can raise any legal or equitable defense or counterclaim at the hearing, as long as it falls within the court’s jurisdiction.⁶ Common defenses tied directly to the 5-day notice include:

Improper notice: wrong amount claimed, defective delivery, or filing before the five days ran.
Acceptance of rent without a written reservation of rights.
Habitability problems that contributed to the nonpayment.

Even after losing at trial, a tenant who can show the default arose from a good-faith dispute can stay the judgment by paying all rent and court costs, or by filing an undertaking to pay within 10 days. If the tenant does not follow through, the court issues a warrant of possession.⁶

Retaliation

Delaware law prohibits landlords from filing for eviction, raising rent, or cutting services in retaliation against a tenant who has complained about code violations, organized a tenant group, or exercised any legal right related to the tenancy. If the landlord takes any of these actions within 90 days of the tenant’s protected activity, the law presumes the action is retaliatory.⁷

A tenant who proves retaliatory eviction can recover three months’ rent or three times their actual damages, whichever is greater, plus court costs.⁷ For a landlord issuing a 5-day notice to a tenant who has recently complained, documenting legitimate, non-retaliatory grounds before serving the notice is worth the time.

1
Justia. Delaware Code Title 25 – Landlord Remedies for Failure to Pay Rent
2
Justia. Delaware Code Title 25 – Tenant Obligations Rent
3
Delaware Courts. Delaware Courts – Landlord/Tenant – Help and Support
4
Delaware Courts. Delaware Courts – Fees and Filings for the Justice of the Peace Court
5
Office of the Law Revision Counsel. 50 USC 3931 – Protection of Servicemembers Against Default Judgments
6
Delaware Code Online. Delaware Code Title 25 – Summary Possession
7
Delaware Code Online. Delaware Code Title 25 – Tenant Obligations and Landlord Remedies