To evict a family member in Delaware, you follow the same legal process used for any other tenant: deliver a written notice, file a summary possession case in the Justice of the Peace Court, and let a constable handle the physical removal if the person still refuses to leave.1Delaware Code Online. Delaware Code Title 25 – Chapter 57 Summary Possession There are no family exemptions. The fact that your brother sleeps on your couch rent-free, or that your cousin was only supposed to stay “a few weeks,” does not let you skip the statute. Shortcuts reset the clock or expose you to a damages lawsuit worth more than the court process would have cost.
Why Your Relative Counts as a Tenant
Delaware’s Residential Landlord-Tenant Code applies to any rental agreement for a dwelling in the state, and it does not matter whether the agreement is written or oral.2Delaware Code Online. Delaware Code Title 25 – Chapter 51 General Provisions When you let a relative move in with your permission, courts generally treat that arrangement as an occupancy agreement governed by the Code, even when no rent changes hands. Most family members who live in your home without a fixed end date are occupying it under what amounts to a month-to-month arrangement. That gives them the same notice and legal process you’d owe a paying tenant.
This surprises a lot of homeowners. Rent-free occupancy does not strip the person of tenant protections. If you let them in, the law treats your permission as the foundation of a legal occupancy, and the only way to end it is through summary possession in the Justice of the Peace Court.
When Summary Possession Is Not the Right Tool
Two family situations fall outside summary possession, and it’s worth checking both before you file anything.
The first is co-ownership. If your relative’s name is on the deed, they have an ownership interest and cannot be evicted as a tenant. The remedy there is a partition action in Superior Court, where a judge can order the property sold or physically divided.3Delaware Code Online. Delaware Code Title 25 – Subchapter II Partition Proceedings Pull the deed before you spend time on the wrong case.
The second is a true trespass situation, where the family member entered or stayed without any permission at all. If no occupancy agreement ever existed, not even an informal verbal one, local law enforcement may be the right first call. The safer assumption, though, is that anyone you allowed in qualifies as an occupant under the Code.
What Written Notice to Serve
Before you can file anything in court, you have to deliver written notice. The type depends on your situation.
60-Day Notice to End a Month-to-Month Occupancy
This is the common family scenario: you simply want them out. Delaware requires at least 60 days’ written notice to terminate a month-to-month occupancy.4Justia. Delaware Code Title 25 – 5106 Rental Agreement Term and Termination of Rental Agreement The timing trap: the 60 days do not start the moment you hand over the notice. They start on the first day of the following month. Hand your sister a notice on March 15, and the clock starts April 1, which means the earliest she must leave is May 31. Miscounting this window is one of the most common reasons eviction filings get dismissed.
5-Day Notice for Unpaid Rent
If your relative agreed to pay rent and has fallen behind, you can demand payment in writing and give them at least five days to pay or move out before filing.5Justia. Delaware Code Title 25 – 5502 Landlord Remedies for Failure to Pay Rent The five-day clock starts when you send or deliver the notice, not when they read it.
How to Deliver It
Hand the notice to your relative with a witness present, or send it by certified mail with return receipt. Keep a dated copy. If the family member later claims they never got notice, that proof is what saves your case.
Filing the Summary Possession Complaint
Once the notice period runs out and your relative hasn’t left, file a Complaint for Summary Possession at the Justice of the Peace Court in the county where the property sits.1Delaware Code Online. Delaware Code Title 25 – Chapter 57 Summary Possession Standardized forms are available through the Delaware Courts website or at any clerk’s office.6Delaware Courts. Forms – Justice of the Peace Court
The complaint needs the full legal name of every adult occupant you want removed, the property’s complete address, and a clear statement of the grounds, typically that the person is a holdover occupant who stayed past the notice deadline. Attach a copy of the written notice you served. Without that attachment, the court has no way to confirm you met the statutory notice requirement, and the case will likely be dismissed before it starts.
The filing fee is $45.7Delaware Courts. Justice of the Peace Court Civil Fees If you win, the court can award those costs as part of the judgment.
Service, the Hearing, and the Writ
After you file, the court issues the complaint and sends a constable to serve it along with the hearing date and time.8FindLaw. Delaware Code Title 25 Property 5704 – Commencement of Action and Notice of Complaint If the constable can’t hand papers to your relative directly, they can leave them with another adult at the residence or, as a last resort, post them on the property and mail copies.9Delaware Courts. How To File and Defend a Summary Possession Action in the Justice of the Peace Court
The hearing is usually set several weeks out, depending on the court’s caseload. At the hearing, the judge reviews your notice, any evidence of the occupancy arrangement, and the grounds for removal. Your relative can appear and argue their side. If you prove your case, the judge enters a judgment for possession. If your relative doesn’t show up, you can request a default judgment, but federal law requires you to first file a written statement confirming the person is not on active military duty, and filing a false military-status affidavit is a federal crime.10Office of the Law Revision Counsel. 50 USC 3931 – Protection of Servicemembers Against Default Judgments
Winning doesn’t let you change the locks that afternoon. The court can’t issue a writ of possession until the five-day appeal window has passed.11Justia. Delaware Code Title 25 – Chapter 57 Summary Possession During those five days, your relative can request a new trial in the Court of Common Pleas. Once the writ issues, a constable or sheriff must give the occupant at least 24 hours’ notice, and the removal can only happen between sunrise and sunset.12Justia. Delaware Code Title 25 – 5715 Execution of Judgment Writ of Possession You are not allowed to participate in the physical removal. The constable handles it.
Do Not Change the Locks
This is where family disputes get expensive. Changing the locks, moving your relative’s belongings to the curb, or shutting off the water or electricity to pressure them out are all illegal under Delaware law. It doesn’t matter that you own the house free and clear or that they haven’t contributed a dollar in months.
If you remove or exclude a tenant without a valid court order, they can sue you for triple their actual damages, or triple the daily rent value for every day they were locked out, whichever is greater, plus court costs.13Justia. Delaware Code Title 25 – 5313 Unlawful Ouster or Exclusion of Tenant Shutting off utilities as a pressure tactic is separately prohibited.14Delaware Code Online. Delaware Code Title 25 – Landlord Obligations and Tenant Remedies A frustrated self-help move can quickly cost more than the court process you were trying to avoid.
One other federal complication worth knowing: if your relative files for bankruptcy before or during the eviction, an automatic stay halts the case, and you’ll need bankruptcy-court permission to continue. Stop and consult an attorney if that happens.
Belongings Left Behind
After a removal, family members often leave things behind. Delaware’s abandoned personal property statute treats property as abandoned only after it has been left in your care for at least one year without the owner exercising control, and the formal process involves a court petition before you can dispose of it.15Delaware Code Online. Delaware Code Title 25 – Chapter 40 Rights and Title to Abandoned Personal Property
In practice, don’t throw anything out the day after the removal. Store the property somewhere reasonable, photograph it, and make a good-faith effort to let your relative pick it up. Acting too quickly here creates the same kind of liability risk as a self-help eviction.
Timeline and Cost
The full process, from first written notice through constable-led removal, typically runs three to four months when everything goes smoothly. The 60-day notice alone eats two months, and the hearing and writ stages add several weeks on top. Contested cases, appeals, or procedural mistakes stretch it further. The $45 filing fee is the smallest expense. The real cost is time, and the biggest risk is a shortcut that forces you to start over or triggers a treble-damages lawsuit.
If you expect to let a relative move in again, put the terms in writing from the start, including when they’re expected to leave. A simple written agreement makes the whole notice process far cleaner if things go sideways later.